BlueRange End User License Agreement (EULA) – Published Feb 1, 2017 IMPORTANT! READ THIS DOCUMENT CAREFULLY. THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “EULA”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, SUCH ENTITY) (“CUSTOMER”) AND BLUERANGE WITH RESPECT TO USE OF THE PROPRIETARY BLUERANGE® SOFTWARE. BY (1) EXECUTING A BLUERANGE® ORDER, (2) INSTALLING, COPYING, DOWNLOADING OR OTHERWISE ACCESSING THE SOFTWARE, (3) ELECTRONICALLY ACCEPTING, OR (4) EXECUTING THIS EULA, CUSTOMER COMPLETELY AND UNEQUIVOCALLY AGREES TO BE BOUND BY THE TERMS OF THIS EULA WITHOUT MODIFICATION. IF CUSTOMER DOES NOT INTEND TO BE LEGALLY BOUND TO THE TERMS AND CONDITIONS OF THIS EULA, CUSTOMER MAY NOT ACCESS OR OTHERWISE USE THE SOFTWARE AND MUST PROMPTLY RETURN ALL COPIES OF THE SOFTWARE AND DOCUMENTATION IN THE MANNER PROVIDED HEREIN. In consideration of the mutual covenants herein expressed, and other true and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. Usage of BlueRange
1.1 License Grant
All licenses granted hereunder are limited, revocable (as provided herein), nonexclusive, non-transferable, world- wide, non-sublicensable licenses to the BlueRange Software (each a “Software License”). The Software components provided under each Software License include those necessary for the number of Users and type of Devices indicated on each Order. Any Affiliate of Customer may use any Software License granted hereunder and, in such event, all references to Customer shall be deemed to be references to the applicable Customer or Affiliate. All Software Licenses are subject to (i) the terms, conditions and restrictions set forth in this EULA and (ii) the fees set forth in the applicable Order and the payment requirements set forth in this EULA. All Software Licenses are granted solely for the purposes set forth in this EULA. If BlueRange is to provide Hosted Services pursuant to an Order or SOW, they will be provided as described herein.
1.2 Subscription License
To the extent reflected in an Order, a Software License provided for the use of the Software on a subscription basis shall be hereinafter referred to as a “Subscription License.” The term for Subscription Licenses shall be one (1) year, unless another term is specified in the Order (the “Subscription Period”). The initial Subscription Period begins on the Delivery Date of the first Subscription License. In the event additional Subscription Licenses are added during a Subscription Period, such Subscription Licenses shall be coterminous with the then current Subscription Period and the fees for the same shall be prorated accordingly. Unless Customer terminates Subscription Licenses by notifying BlueRange at least sixty (60) days prior to the expiration of a Subscription Period, such Subscription Licenses shall automatically renew for an additional Subscription Period.
1.3 Perpetual License
To the extent reflected in an Order, a Software License provided for the use of the Software on a perpetual basis for the term of this EULA shall be hereinafter referred to as a “Perpetual License.”
1.4 Freemium License
If Customer is licensing the Software within the limitations of the unpaid version (“Freemium account), the Software shall be limited in its features, number of users and/or devices at M-Way Solution's sole discretion. BlueRange reserves the right to delete the Freemium Account, should the customer not use it for more than ninety (90) days. Under the Freemium license, the Software and any related Hosted Services are provided “AS IS” without any additional warranty of any kind and Customer understands and agrees no other warranties stated herein shall be applicable.
1.5 General License Provisions
In connection with any Software License, Customer may make a reasonable number of copies of the Software for backup, disaster recovery, and/or archival purposes, provided Customer also reproduces on such copies any copyright, trademark, or other proprietary marking and notice contained in the Software and/or Documentation and does not remove any such marks from the original. As specified in an Order, if the Software is licensed on (i) a per Device basis, then the Software may only be used or accessed by Customer on no more than the number of Devices specified on each Order, and the Software License for the Software may be transferred from Device to Device (except that Software Licenses for Printers may only be transferred between Printers); (ii) a per Named User basis, then the Software may only be used or accessed by Customer on no more than the number of Named Users specified on each Order (with a maximum number of three (3) Devices per Named User), and the Software License for the Software may be transferred from Named User to Named User. There is no limit on the number of computers from which the Devices may be monitored using the Software. Customer will be fully responsible for User’s compliance with terms and conditions of this EULA and any breach of this EULA by a User shall be deemed to be a breach by Customer. Other than Embedded Software, Customer shall be responsible for activating, obtaining, and/or maintaining any third party components, hardware, or software that become necessary or desirable.
2. License restrictions
With respect to Software Licenses where Customer possesses the Software, Customer shall use industry- standard physical, logical, and electronic security and confidentiality systems to protect the Software, using at least the same degree of care it utilizes for the protection of its own software and other confidential and proprietary information. The restrictions set forth in this Section, including all subsections, shall hereafter be referred to as the “License Restrictions.” With respect to each Software License, Customer further agrees that it:
Shall not share with or assign, copy, sublicense, transfer, lease, rent, sell, distribute, install, or otherwise provide to any non-Affiliate party (other than Users) (i) the Software License, (ii) the Software; (iii) any use or application of the Software; or (iv) Customer’s rights under this EULA, nor shall Customer pledge as security or otherwise encumber, the Software;
Shall use the Software solely (i) within Customer’s ordinary business operations, (ii) in accordance with all applicable laws and regulations, and (iii) as provided in this EULA, the Documentation, and any supplemental limitations specified or referenced in the relevant Order, if any;
Shall not use the Documentation except for supporting its authorized use of the Software;
Shall not use the Software or any of its features to invade the privacy of any person or otherwise violate any law, including, but not limited to, by usage of GPS functionality, location/tracking services, and the like;
Other than as expressly set forth in this EULA, shall not (i) modify, adapt, translate, duplicate, disassemble, decompile, reverse assemble, reverse compile, or reverse engineer, or take similar action with respect to the Software for any purpose, or (ii) attempt to discover the underlying source code or algorithms of the Software (unless enforcement is prohibited by applicable law and then, only to the extent specifically permitted by applicable law, and then only upon providing M-Way Solutions with reasonable advance written notice and opportunity to respond);
For the purpose of designing, modifying, or developing software or services similar in purpose, scope, or function to the Software, shall not engage in competitive analysis, benchmarking, use, evaluation or viewing of the Software or Documentation or create any derivatives based upon the Software, whether for Customer’s internal use or for license or for resale;
Shall not use the Software without obtaining its own Apple Push Notification services (APNs) Certificate from Apple Inc. if Customer uses the Software to manage Devices running on Apple operating systems;
Shall not employ any BlueRange Competitor to use the Software on Customer’s behalf, view the Software or Documentation, or provide management, staging, support, hosting, or similar services with regard to the Software without the prior written consent of BlueRange, and
Shall not permit any party, whether acting directly or on behalf of Customer, to breach or violate any of these License Restrictions.
3. THIRD PARTY SOFTWARE AND THIRD PARTY APPLIANCE
Third Party Software and/or Third Party Appliances (“Third Party Products”) may be provided in addition to the Software as a convenience for Customer, but are not required or necessary for the use of the Software. If any Third Party Products are delivered to Customer pursuant to an BlueRange Order, with respect to such Third Party Products BlueRange hereby (i) assigns, sublicenses, or passes through to Customer all assignable warranties, representations, covenants, and indemnities granted to BlueRange by any third party in connection therewith along with the remedies for breach of such. To the extent that BlueRange is not permitted to take one or more of the foregoing actions, BlueRange will, at Customer’s request and expense, enforce the foregoing protections on behalf of Customer to the extent permitted to do so under the terms of the applicable third party license. Other than the foregoing, all Third Party Products listed in an M-Way Solutions Order are provided “AS IS,” with no other warranties of any kind. Any Third Party Software sublicense will terminate when this EULA terminates, when the Software License terminates, or when the Software is no longer being used by Customer. Third Party Software shall be subject to the License Restrictions. IN NO EVENT WILL BLUERANGE BE LIABLE FOR THE PERFORMANCE OF ANY THIRD PARTY PRODUCT OR THE BREACH OF ANY WARRANTY RELATED THERETO. BLUERANGE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES (INCLUDING ANY WARRANTY OF NON-INFRINGEMENT) AND DISCLAIMS ALL LIABILITY, INCLUDING ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR SAVINGS, AND ANY LOSS OR DAMAGE, CAUSED BY ANY THIRD PARTY PRODUCT.
Maintenance shall be provided in accordance with BlueRange then-current Maintenance Specifications. Maintenance is offered only for the Software. BlueRange will provide Maintenance for prior releases and versions for a period of one (1) year following the initial release date of the superseding release or version.
4.1 Subscription License
All Subscription Licenses include Maintenance. Maintenance may not be separated from the Subscription License and may not be terminated without also terminating the Subscription License.
4.2 Perpetual License
With all Perpetual Licenses, Customer shall subscribe to Maintenance for twelve (12) month periods (each a “Maintenance Period”). Customer hereby subscribes to Maintenance at the price set forth in the Order and the initial Maintenance Period begins on the effective date of the relevant Order. Customer may not elect to exclude any of the Software Licenses from Maintenance during the Maintenance Period. At least thirty (30) days prior to the expiration of a Maintenance Period, Customer may (i) elect to renew Maintenance at M- Way Solutions’ then-current rates, or (ii), elect not to renew Maintenance. If no written notice of non-renewal is provided to BlueRange prior to the expiration of a Maintenance Period, there shall be an automatic renewal of Maintenance at BlueRange’s then- current rates as determined in accordance with this EULA. In the event Customer adds Devices under a Perpetual License during a Maintenance Period, the Maintenance fees for such licenses shall be coterminous with the then current Maintenance Period. Devices shall be prorated from the date they are added to the end of the then-current Maintenance Period. If BlueRange is providing Hosted Services in a shared environment in connection with Devices under Perpetual Licenses and Customer elects to terminate Maintenance or is not current with Maintenance fees or Hosted Service fees, then BlueRange may suspend the Hosted Services, with no further obligation or liability, until such time as the Hosted Service fees are brought current, Maintenance is reinstated, and/or the Maintenance fees are brought current, as the case may be.
4.3 Freemium License
With respect to any Freemium License, Customer will be entitled to receive Maintenance during the Trial Period and no payment of Maintenance fees shall be required.
5. Additional Work
To the extent that BlueRange is requested to provide additional Software Related Services to Customer (such as training or installation), they shall be provided pursuant to an Order or SOW, billed at BlueRange then-current rates for Software Related Services, and invoiced to Customer. Software Related Services provided on Customer’s premises shall be subject to BlueRange reimbursement policies.
6. Hosted Services
Hosted Services are provided when BlueRange will host the Software on Customer’s behalf, as set forth in the Order. Hosted Services are provided in accordance with BlueRange Hosted Services Policy.
7. Additional Orders
In the event that Customer wishes to place additional Devices under a Software License or avail itself of any other offerings set forth herein, the parties shall execute an Order detailing the number and type of additional Software Licenses and/or other offerings to be obtained. Pricing for such Orders shall be as set forth in the original Order, subject to any pricing changes made pursuant to this EULA, or, if no pricing is provided in the original Order, BlueRange then-current published prices shall apply.
8. PATENT OBLIGATIONS; RESELLERS
8.1. Payment Obligations
All fees payable hereunder are due and payable within thirty (30) days of the date of invoice. Any amounts not subject to a good faith dispute that are not paid within forty-five (45) days of the date of invoice will incur interest at a rate equal to the lower of one percent (1.0%) per month or the highest rate then permitted by law. Additionally, M-Way Solutions may suspend Hosted Services and/or Maintenance until the undisputed portion of Customer’s account is brought current. All fees and charges referred to herein (including those shown in an Order, an SOW, or any invoice) are exclusive of taxes. Taxes imposed by government agencies, with the exception of franchise taxes and taxes based upon the net income of BlueRange, whether based upon the Software, services, their use, or this EULA (including sales and use taxes) are an additional obligation of Customer. For any future period, BlueRange may increase any or all fees payable hereunder; provided, however, that (i) no fee increase shall become effective until sixty (60) days after M-Way Solutions notifies Customer in writing of such fee increase and (ii) each increase shall not exceed BlueRange then-current published prices. In the event Customer utilizes the Software with a number of Devices in excess of the number of Software Licenses set forth in an Order, Customer shall be obligated to pay the relevant Software License fees, together with any applicable Maintenance or Hosted Services fees, prorated for the then-current term.
Where separately agreed, Customer may purchase Software Licenses and other offerings hereunder from an BlueRange authorized reseller (“Reseller”), in which case all payments will be to Reseller under the terms agreed between Customer and Reseller. Where Customer purchases any offerings hereunder through a Reseller, any refunds or credits set forth herein (whether as part of a warranty, Hosted Services, or otherwise) shall only apply to the extent the Customer has paid the relevant fees directly to BlueRange. Should Customer and Reseller terminate their business relationship; in the event Reseller files for bankruptcy protection, sells all or substantially all of its assets, or ceases to do business in the ordinary course; or if Customer otherwise desires to do so, Customer may purchase any offerings as set forth in this EULA directly from BlueRange. In the event that Customer purchases the Software or other BlueRange offerings through an a Reseller and such Reseller has granted Customer rights not contained in this EULA, Customer’s sole course of action in the event of a dispute regarding those rights shall be against the Reseller.
9. CONFIDENTIALITY AND PROPRIETARY RIGHTS
In the course of performance of this EULA, either party (“Discloser”) may find it necessary to disclose to the other party (“Recipient”), or Recipient may otherwise obtain from Discloser, certain proprietary information or materials, which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential (“Confidential Information”). The following information shall be considered Confidential Information whether or not marked or identified as such: information regarding M-Way Solutions’ pricing, product roadmaps or strategic marketing plans; and non-public materials relating to the Software. Confidential Information does not include information that: (a) was in the public domain at the time of Discloser's communication thereof to Recipient, (b) becomes part of the public domain after the time of disclosure, through no improper action of Recipient; (c) was in Recipient's possession free of any obligation of confidence at the time of Discloser's communication thereof to Recipient; (d) can be shown by documentation to have been independently developed by the Recipient without the use of or reference to any Confidential Information; (e) is not treated as confidential by Discloser; or (f) is approved fo release by Discloser in writing. Recipient shall use any Confidential Information received (or derivatives thereof) solely for the purpose of performing its obligations under this EULA. Recipient shall not disclose or permit any non-Affiliate party access to any Confidential Information, except to Recipient’s officers, directors, employees, contractors, representatives, or agents on a need to know basis and where all such officers, directors, employees, contractors, representatives, or agents have confidentiality obligations at least as restrictive as those set forth in this Section. Recipient agrees to use reasonable efforts to protect the confidential or proprietary nature of such Confidential Information (and any derivatives thereof), using at least the same degree of care it utilizes for the protection of its own strictly confidential and proprietary information. The obligations under this EULA will continue: (i) with respect to Confidential Information (and/or derivatives thereof) that does not constitute a trade secret, in perpetuity after the termination of this EULA; and (ii) for any Confidential Information (and/or derivatives thereof) that constitutes a trade secret, for so long as such information remains a trade secret under applicable law. Notwithstanding the foregoing, in the event disclosure is required by court, government order, or law (such as state open records or freedom of information acts), Recipient shall (x) promptly notify Discloser of such order or requested disclosure so that it may seek a protective order or other appropriate remedy and (y) only disclose such Confidential Information to the extent required. All Discloser Confidential Information and derivatives thereof shall remain the property of Discloser and will be returned to Discloser within ten (10) days following the termination of this EULA. Without limiting the foregoing or the License Restrictions, Customer shall not disclose or display any BlueRange Confidential Information, including the Software, to any BlueRange Competitor. The obligations set forth in this Section are hereafter referred to as the “Confidentiality Obligations.”
9.2 Proprietary Rights
Title to and ownership of the Software, Hosted Services, and all BlueRange copyrights, names, trademarks, trade names, service marks or any other identifying characteristics are proprietary intellectual property of significant value and goodwill to M- Way Solutions and all associated intellectual property rights relating thereto (the “BlueRange IP”) are retained by BlueRange. This EULA only grants Customer the limited right to use the BlueRange IP under the terms and restrictions specified in this EULA. Customer does not, and will not, acquire any other right, title or interest in any BlueRange IP, which will at all times remain the exclusive property of BlueRange or the applicable third party licensor to M- Way Solutions. Customer will not remove, suppress, or modify in any way any proprietary marking which is on or in the BlueRange IP, or which is on any media supplied with the BlueRange IP, except where expressly allowed. Customer acknowledges and agrees that M- Way Solutions shall be the sole owner of any Enhancements, Updates, or derivatives of the Software and the Hosted Services which are developed by BlueRange during and after the term of this EULA. Without limiting the foregoing, Customer expressly acknowledges and agrees that BlueRange shall be the sole owner of any newly- developed intellectual property including but not limited to (i) newly- developed, revised, or modified source code and (ii) inventions where such are related in any way to the Software, the Hosted Services or M- Way Solutions’ general business, regardless of the creator, whether such are developed, revised, or modified in response to Customer’s requests, suggestions, or ideas, even if performed as Software Related Services paid for by Customer. During the term of this EULA and thereafter, Customer shall not assert the invalidity of the BlueRange IP, or contest BlueRange right, title or interest therein and thereto, and Customer shall not cause, influence, or assist in any manner whatsoever, any other party to make any such assertions or contest.
10. LIMITED WARRANTIES; REMEDIES; DISCLAIMERS; LIMITATION OF LIABILITY
10.1. Limited Software Warranty and Remedies
In connection with Subscription or Perpetual Licenses granted hereunder, BlueRange warrants that the Software, as delivered by BlueRange to Customer, will substantially perform the functions set forth in the Documentation (the “Software Warranty”). If deviations from the requirements set forth in the Software Warranty occur within the ninety (90) day period following the Delivery Date (the “Software Warranty Period”) or so long as Customer is subscribed to and current with Maintenance, upon written notice by Customer to BlueRange, M- Way Solutions will, without additional compensation, either (1) repair, at its facilities, the Software; or (2) replace the Software, in each case to correct the nonconformity. If BlueRange provides written notice to Customer that it is unable to correct the nonconformity within a reasonable period, or if neither option (1) nor (2) is commercially feasible, either party may terminate this EULA and the relevant Subscription or Perpetual License upon written notice to the other party. Only when such nonconformity results in termination of this EULA as provided in the previous clause during the Software Warranty Period, M- Way Solutions shall refund to Customer (i) the relevant Perpetual License fees and the unused remainder of any related prepaid fees for Software Related Services, Maintenance, or Hosted Services (“Other Fees”) paid by Customer and received by BlueRange, or (ii) the relevant Subscription License fees and the unused remainder of any related Other Fees paid by Customer and received by BlueRange. The Software Warranty Period is not extended in any way by any Enhancement or Update, by placing more Devices under license, by any delivery of additional Software, or by replacement or repair of the Software. For clarity, newly purchased Subscription or Perpetual Licenses receive the Software Warranty from their Delivery Date, but purchasing new Subscription or Perpetual Licenses does not extend the Software Warranty Period for previously purchased Subscription or Perpetual Licenses. The Software Warranty does not cover situations where: (a) the Software has not been used in accordance with this EULA and the Documentation; (b) the Software has been altered in any way by a party other than M-Way Solutions that is not under the direction or control of BlueRange; (c) the Software is used in an operating environment other than as specified in the Documentation; (d) such nonconformity in the Software is due to abuse, neglect, or other improper use by Customer; or (e) reported errors or nonconformities cannot be reproduced by BlueRange, working, in good faith, with Customer’s assistance. This Section sets forth Customer’s sole and exclusive remedies with respect to breaches of the Software Warranty.
10.2. Infringement Claims
Subject to the remainder of this section, in connection with Subscription or Perpetual Licenses granted hereunder, BlueRange, at its sole expense, agrees to defend Customer against any third party claim that Customer’s use of the Software, as delivered by BlueRange to Customer and used in accordance with this EULA and the Documentation, directly infringes a third party copyright or issued patent or directly misappropriates a trade secret (but only to the extent such misappropriation is not a result of Customer’s actions) under the laws of: (a) the United States and Canada; (b) the European Economic Area; (c) Australia; (d) New Zealand; (e) Japan; or (f) the People’s Republic of China (an “Infringement Claim”), and indemnify Customer from the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement; provided that: (i) Customer promptly notifies BlueRange in writing of the Infringement Claim; (ii) BlueRange has sole control of the defense and all related settlement negotiations; and (iii) Customer provides M- Way Solutions with the information, assistance and authority to enable BlueRange to perform BlueRange obligations under this Section. Customer may not settle or compromise any Infringement Claim without the prior written consent of BlueRange. In any action based on an Infringement Claim, BlueRange, at its option and its own expense, will either: (1) procure the right for Customer to continue using the Software in accordance with the provisions of this EULA; (2) make such alterations, modifications or adjustments to the Software so that the infringing Software becomes non-infringing without incurring a material diminution in performance or function; (3) replace the Software with a non-infringing substantially similar substitute; or (4) terminate the relevant Software Licenses, and upon Customer certified destruction or deletion of the Software, BlueRange shall refund to Customer the unused remainder of any Subscription License fees prepaid by Customer and received by BlueRange, or, with respect to Perpetual Licenses, refund to Customer the amortized remainder of the Perpetual License fees (based on a three (3) year straight-line depreciation period from the Delivery Date), and the unused remainder of any related prepaid Other Fees received by BlueRange. In connection with any termination pursuant to this Section, Customer shall comply with all post-termination requirements set forth in this EULA. BlueRange shall have no liability or obligations for an Infringement Claim pursuant to this Section to the extent that it results from: (a) modifications to the Software made by a party other than M- Way Solutions or under the direct control of BlueRange; (b) the combination, operation or use of the Software with non-BlueRange products; (c) use of the Software outside the scope of this EULA or in contravention of the Documentation; (d) BlueRange’s use of any designs, plans, instructions, specifications, diagrams or the like, provided by Customer, if any; (e) Customer’s failure to use all available Enhancements and Updates to the Software made available to Customer by BlueRange (other than in a shared Hosted Services environment, where BlueRange will implement the same), if the claim would not have occurred but for such failure; (f) use of open source software or freeware technology or any derivatives or other adaptations thereof not embedded by BlueRange into the Software; or (g) any Software that is provided on a no charge, beta, or evaluation basis. Nothing in this provision shall be construed as a limitation on Customer’s ability to retain legal counsel at its own expense to passively monitor the proceedings. This Section sets forth Customer’s sole and exclusive remedies and BlueRange’s entire liability with respect to Infringement Claims.
EXCEPT AS EXPRESSLY SET FORTH IN THIS EULA, THE SOFTWARE, HOSTED SERVICES, THIRD PARTY APPLIANCE, THIRD PARTY SOFTWARE, MAINTENANCE, UPDATES AND ENHANCEMENTS, SOFTWARE RELATED SERVICES, OR DELIVERABLES PROVIDED AS A RESULT OF THE PERFORMANCE OF MAINTENANCE OR SOFTWARE RELATED SERVICES (COLLECTIVELY, THE “WARRANTED MATTERS”) ARE PROVIDED “AS IS” AND BLUERANGE AND ITS LICENSORS, DEVELOPERS, AND OTHER SUPPLIERS (THE “BLUERANGE PARTIES”) FURTHER DISCLAIM THAT THE FUNCTIONS CONTAINED IN THE WARRANTED MATTERS WILL MEET THE REQUIREMENTS OF CUSTOMER OR OPERATE ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH IN THIS EULA, THERE ARE NO OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE, OPERATION OF LAW, TRADE USAGE, COURSE OF PERFORMANCE OR DEALING OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT, TITLE, ACCURACY, OR COMPLETENESS; ALL SUCH WARRANTIES BEING SPECIFICALLY AND FULLY DISCLAIMED BY THE BLUERANGE PARTIES. OTHER WRITTEN OR ORAL REPRESENTATIONS OR AFFIRMATIONS OF FACT, INCLUDING BUT NOT LIMITED TO, STATEMENTS FROM M-WAY SOLUTIONS OR ANY OTHER SOURCE REGARDING THE PERFORMANCE OF THE WARRANTED MATTERS THAT ARE NOT CONTAINED IN THIS EULA, SHALL NOT BE BINDING ON THE BLUERANGE PARTIES AND ARE HEREBY EXPRESSLY DISCLAIMED. BLUERANGE FURTHER DISCLAIMS ANY LIABILiTY TO CUSTOMER OR USERS FOR ANY THIRD PARTY CHARGES, INCLUDING, BUT NOT LIMITED TO, DATA ,USAGE, OR TELECOMMUNICATION CHARGES, FOR DEVICES MANAGED BY THE SOFTWARE.
10.4. Limitation of Liability
EXCEPT FOR BREACHES OF THE LICENSE RESTRICTIONS, CONFIDENTIALITY OBLIGATIONS, OR MISUSE OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS (“IP”), CLAIMS UNDER THE INDEMNITY PROVISIONS OF THIS EULA, OR FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW: (A) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS, REVENUE, DATA, OR DATA USE AND (B) EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS EULA OR ANY ORDER, WHETHER SUCH ACTION IS BROUGHT IN LAW, EQUITY, CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, SHALL BE LIMITED TO THE SOFTWARE LICENSE FEES PAID BY CUSTOMER AND RECEIVED BY BLUERANGE HEREUNDER IN THE LAST TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11.1. Indemnity for Customer Data
Customer will defend, indemnify, and hold harmless BlueRange against any third party claims, losses, fines, or damages arising from or relating to: (a) Customer Content; (b) any infringement or misappropriation of any intellectual property rights by Customer or Customer’s Users; (c) violation of law or regulation by Customer relating to Customer Content or use of the Hosted Services; or (d) Customer’s use of the Hosted Services in violation of this EULA or Hosted Services Policy. BlueRange will (i) provide Customer with notice of the claim within a reasonable period of time after learning of the claim; and (ii) reasonably cooperate in response to Customer’s requests for assistance. Customer may not settle or compromise any indemnified claim without BlueRange’s prior written consent.
12. TERM, RENEWAL, AND TERMINATION
12.1. Term and Renewal
This EULA will commence on the Effective Date and will continue for so long as a valid Order is in place or until Customer ceases use of all offerings hereunder, whichever is later; unless the EULA is earlier terminated as provided herein.
12.2. Customer Termination
Customer may terminate this EULA for cause: (i) in the event of a material breach by BlueRange of this EULA that is unremedied for a period of thirty (30) days after receipt of written notice by BlueRange, (ii) immediately with concurrent notice in the event of a breach by BlueRange which, by its nature, cannot be cured, or (iii) as otherwise expressly provided herein. With respect to terminations for cause, Customer shall receive a refund of any related prepaid unused fees for Subscription Licenses, Hosted Services, and/or Maintenance. Except as otherwise expressly and specifically stated in this EULA, no refunds or payments of any kind shall be due.
12.3. BlueRange Termination
BlueRange may terminate the EULA and the relevant Software License, Maintenance or Hosted Services under this EULA: (i) if Customer ceases or is delinquent in making payments of any applicable fees owed for a period of thirty (30) days after notification of such delinquency; (ii) in the event of a material breach of this EULA by Customer that is unremedied for a period of thirty (30) days after receipt of written notice by Customer; (iii) as otherwise expressly provided herein; (iv) immediately with concurrent notice in the event of a breach by Customer which, by its nature, cannot be cured.
12.4. Customer Obligations upon Termination
Upon the termination or expiration of this EULA and the related Software Licenses, Maintenance or Hosted Services for any reason whatsoever (i) any Software License, Maintenance or Hosted Services will automatically and immediately terminate, (ii) Customer will immediately cease and desist from all use of the Software in any way, and (iii) within ten (10) days after the effective date of the termination or expiration of this EULA and any related Software License, Customer is required to uninstall and either return or destroy the applicable Software and provide a written certification executed by an officer of Customer certifying such action. Except for Customer terminations for cause, upon termination, Customer shall pay any fees then owing under this EULA as of the date of termination within thirty (30) days. Terminations are effective upon Customer’s compliance with this Section.
12.5. BlueRange Obligations upon Termination
After termination or expiration of this EULA, Customer acknowledges and agrees that M- Way Solutions has no obligation to retain Customer Content and BlueRange shall delete Customer Content in accordance with BlueRange retention policies. Upon Customer’s request, BlueRange will provide Customer with instructions to enable Customer to use the report function of the Software to export Device information from the Software.
12.6. Freemium License
At the termination of any Freemium license, Customer may terminate this EULA immediately upon notice to BlueRange and shall comply with its obligations hereunder. To the extent that Customer continues to use the Software in excess of the limitation set forth in the Freemium License, then the Freemium License(s) shall convert to Subscription License(s) under this EULA at BlueRange then-current rates, terms, and conditions. To the extent Freemium Customer purchases Software Licenses, whether directly through M- Way Solutions or a Reseller, unless otherwise stated in an Order provided by BlueRange, Customer’s use of the Software Licenses and the associated Software, Maintenance and Hosted Services shall be subject to this EULA.
The provisions of this EULA that by their sense and context are intended to survive termination of this EULA, shall so survive termination.
13. Customer Data
Customer is responsible for ensuring that Users comply with Customer’s obligations under this EULA. Customer will duly observe all of its obligations under any relevant data protection law or regulation that may apply to the relationships contemplated under this EULA, including, specifically, any obligation for Customer to configure the Software and/or Hosted Service appropriately, provide notice, obtain consents or file registrations with applicable data protection authorities. Customer will configure the Software and/or Hosted Service in accordance with all applicable laws and regulations. Further, as required by applicable law or regulation, Customer will notify Users that any Customer Content provided as part of the Software and/or Hosted Services will be made available to a third party (i.e. BlueRange) as part of BlueRange providing the Software and/or Hosted Services.
13.2. Relationship and usage data
Customer agrees that BlueRange may also process Relationship Data and Usage Data to manage Customer’s account, send service-related notifications, bill for purchased services, enforce compliance with this EULA, facilitate the provisioning of Updates and Enhancements, improve the Software and/or Hosted Service, better understand Customer’s business needs and comply with BlueRange contractual obligations and applicable law. Relationship Data, Error Logs and Usage Data may be transferred to BlueRange from time to time. To the extent that this information constitutes personal information, BlueRange shall be the controller of such personal information and shall comply at all times with its obligations under the local legislation applicable in the territory for the protection of individuals with regard to the processing of Customer Personal Data. In this section, “controller” shall have the meaning given to it in the EU Directive 95/46/EC. When a device communicates with the BlueRange server, this results in the transmission of data to and from the mobile device and such transmission of data could result in additional carrier or service provider charges to the Individual. BLUERANGE DISCLAIMS ANY LIABILITY FOR AND IS NOT RESPONSIBLE FOR ANY CARRIER OR INTERNET SERVICE PROVIDER DATA COSTS OR CHARGES INCURRED BY ANY CUSTOMER OR INDIVIDUAL IN CONNECTION WITH USAGE OF THE BLUERANGE EMM SUITE.
13.3. Tracking and Location Information
BlueRange may collect and/or track certain information that is derived from your usage of the BlueRange software such as usage patterns, travel patterns, and Web site page views, and traffic patterns. BlueRange may use this tracking and location information for statistical purposes to improve our products and services and to manage our networks and systems more efficiently. When you access the BlueRange Administration Portal, our servers automatically record information that your device sends and these server logs may include: the MAC (Media Access Controller) address from the network card in or used with your device; your web request, Internet Protocol address, browser type, browser language, the date and time of your request; and other information regarding Internet connection activity (such as packets sent and received). This information enables BlueRange to accurately perform our billing functions, monitor and maintain our network, address issues that may arise concerning claims of abuse or inappropriate activity. Some of the information BlueRange collects allows us to differentiate users on our network, and in some cases, we act as a pass-through for certain pieces of personal information in order to obtain authentication to allow for Internet access. Some of the information BlueRange collects allows us to perform our support obligations.
13.4. Monitoring Information
The levels of communication and monitoring functionality between your mobile device or smartphone and the BlueRange server is selected by our Customer who is typically your employer or the company for whom you work as an independent contractor or consultant. In some instances, our Customer asks us to host the BlueRange server and in other instances our Customer hosts the BlueRange server. When BlueRange hosts the BlueRange server, we may collect and/or track certain information that is derived from your usage of the mobile device and may perform other functions. From this console, the administrator can perform partial or complete erasure of data on your device, including restoring the device to its factory default. The information collected and tracked by the BlueRange server depends upon the system configurations chosen by our Customer. While the following are not required, such information may include, where enabled by the Customer:
Device identifier and device username Status of the mobile device SIM card MAC addresses and device serial numbers Phone number, signal strength, cell tower, carrier, IMEI#, and other WWAN attributes First and last name and email address of device user Data usage through WWAN interface (excluding content) Transaction history regarding SMS, email and phone calls, excluding the content of messages and calls. Device check-out/check-in: tracking who uses which device as well as the physical status of the device at the start of a shift and then again at the end of a shift Tracking of associated device assets, including service plan and associated physical equipment (i.e., cradles, etc.) Tracking of applications loaded on the device (excluding content) Real-time GPS location tracking and mapping, including analysis of location data and history Mobile device remote control, including screen capture The portions of the BlueRange software that allow smartphones and mobile devices to be monitored by the BlueRange server run in the background of the devices. Individuals are notified that these functions may occur, but may not be aware when these functions are occurring in real time. This information is all made available to our Customer via the BlueRange Administration Portal for our Customer’s use in accordance with its own business uses. Some of the information BlueRange collects allows us to perform our support obligations. BlueRange has no direct relationship with the individuals whose personal data it processes. An individual who seeks access, or who seeks to correct, amend, or delete inaccurate data should direct his query to the BlueRange Customer (the data controller). If the Customer requests M-Way Solutions to remove the data, we will respond to their request within 30 business days.
13.5. Data transfer
Customer agrees that Customer Content, Relationship Data, and Usage Data collected or received by BlueRange in connection with the download, installation, configuration, maintenance, support and use of the Software or Hosted Service may be transferred, stored and processed in Germany or any other country in which BlueRange or its Affiliates or service providers maintain facilities. By downloading, installing, or using the Software/Hosted Service, or by receiving customer support assistance, Customer consents to the processing of both technical and Customer Personal Data.
Customer authorizes BlueRange to subcontract processing of Customer Content under this Agreement to a third party provided that: (i) BlueRange will ensure any subcontractor it appoints will protect the Customer Content to a standard which is substantially equivalent to the standard that is set forth in this EULA; and (ii) BlueRange will be responsible for the acts, errors and omissions of any subcontractor BlueRange appoints to process the Customer Content.
13.7. Support data
Customer acknowledges that correspondence, log files and other support data generated in conjunction with a request for customer support services may contain sensitive, confidential or personal information. Customer is solely responsible for taking the steps it considers necessary to protect such data, including obfuscating the logs or otherwise guarding such information prior to sending to BlueRange.
Except as otherwise provided herein, all notices, consents, requests, instructions, approvals, and other communications made, required, or permitted under this EULA will be given to the parties at the addresses listed on the Order by: (i) personal service or recognized international or overnight courier, deemed effective on reported delivery date; or (ii) facsimile transmission or email transmission, deemed effective on delivery date confirmation. Duplicate notices are required to be provided to BlueRange GmbH, Daimlerstraße 133, D-70372 Stuttgart, Germany, email@example.com
BlueRange shall be entitled to conduct periodic surveys solely for the purposes of determining (i) the number of Devices in use with the Software and (ii) compliance with the terms and conditions of this EULA. Such surveys shall be conducted remotely, at BlueRange expense, and shall not interfere with Customer’s business operations.
16. General provisions
16.1. Acceptance of an Additional Order
Customer’s acceptance of an additional Order and reaffirmation of its agreement to the terms and conditions of the EULA and the original Order shall be indicated by Customer (i) executing and returning to BlueRange a new Order or (ii) using any additional Devices with the Software.
16.2. Governing Law
This EULA will be governed by and construed in accordance with the laws of Germany, excluding its principles of conflicts of law and the private international law rules, and the venue and exclusive jurisdiction for any litigation will be in the state or federal courts of Germany.
The parties acknowledge and agree that any breaches of the License Restrictions, the Confidentiality Obligations, or either party’s IP rights may give rise to irreparable harm to the non-breaching party for which the granting of monetary damages would not be an adequate remedy, accordingly, the non-breaching party may, in addition to all other available remedies, seek equitable remedies to restrain any continued breach of the License Restrictions, the Confidentiality Obligations, or a party’s IP rights by the breaching party, as the case may be, without having to prove that actual damage has been sustained by the non-breaching party. No action arising out of this EULA, regardless of form, may be brought more than one (1) year after the claiming party knew or should have known of the cause of action.
16.4. Export Laws
The Software is subject to german export control laws and regulations and may be subject to export or import regulations in other countries. These laws and regulations include licensing requirements and restrictions on destinations, end users, and end use. Customer shall comply with all domestic and international export and import laws and regulations that apply to the Software and acknowledges that Customer has the responsibility to obtain any and all necessary licenses to export, re-export, or import the Software and covenants that it shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Software, source code, or technology (including derivative products) received from BlueRange under this EULA to any other party or destination prohibited by the laws or regulations of Germany, without obtaining prior governmental authorization as required by those laws and regulations.
This EULA, including any rights, licenses or obligations under this EULA, may not be assigned or otherwise transferred (whether by operation of law, merger, reorganization, or otherwise) by Customer to any non-Affiliate party without the prior written consent of BlueRange and any attempt to do so in violation of the terms hereof shall be null and void.
16.6. Force Majeure
A party is not liable under this EULA for non- performance caused by any failure of performance, equipment, or payment due to causes beyond the reasonable control of such party, if the party makes reasonable efforts to perform. This Section does not operate to relieve either Party of its obligation to make payments then owing.
BlueRange may use the name and/or logo of Customer in a list of customers used in marketing materials until requested to cease this use by Customer. Within forty-five (45) days of signing this EULA, BlueRange may publish a press release announcing the acquisition of Customer as a customer, provided Customer has an opportunity to review and approve the press release.
16.8. Independent Contractor
BlueRange shall at all times be considered an independent contractor under this EULA. Nothing contained herein will be construed to create the relationship between the parties of principal and agent, employer and employee, partners or joint venturers.
16.9. No Third Party Beneficiaries
This EULA is for the benefit of Customer and BlueRange and does not provide any third party the right to enforce it or to bring an action for any remedy, claim, liability, reimbursement or cause of action or any other right or privilege.
The failure of either party to require the performance by the other party of any provision hereof will not constitute a waiver of that provision or the required performance. The waiver by either party of any breach of any provision of this EULA will only be valid if given in an executed written instrument and any such waiver will not constitute a waiver as to any subsequent breach or continuation of the same breach.
Headings are used in this EULA for convenience only and shall not affect any construction or interpretation of this EULA.
In the event that BlueRange or another party has provided Customer with a translation of this EULA from the English language to another language, Customer agrees that such translation is provided for convenience only; that the English language version of this EULA governs the relationship between BlueRange and Customer; and, if there is any conflict between the English language version of this EULA and such translation, the English language version shall take precedence.
16.13. Entire Agreement
This EULA constitutes the entire agreement between the parties with respect to the subject matter hereof. This EULA and any related Order supersede and replace all prior understandings, negotiations, commitments, representations, and agreements of the parties relating to the Software and the subject matter hereof. BlueRange agreement to provide the Software to Customer is expressly conditioned upon the unequivocal application of all terms and conditions included in this EULA to such transaction and any additional or different terms or conditions proposed by Customer (whether by Order, purchase order, counter-offer, acknowledgement, electronic data interchange, vendor enrollment, or otherwise) are hereby expressly objected to and will not be in any way binding upon BlueRange. It is the express agreement of the parties that the terms of this EULA shall supersede any conflicting terms in any related Order or SOW, unless the conflicting terms in such related Order or SOW clearly express an intent to supersede this EULA by directly and specifically referring to the section or sections of this EULA to be superseded and such Order or SOW is executed by each party. If any term of this EULA is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this EULA. This EULA may only be amended or modified in writing or by subsequent M-Way Solutions Quote.