BlueOrange Compliance Terms and Conditions
In consideration of BlueOrange Complaince offering its Services to the Client (defined below), these Terms and Conditions shall apply.
1.1 Definition. The following definitions apply to this Agreement:
“Agreement” is this BlueOrange Master Services Agreement, the applicable Purchase Orders, and these Terms and Conditions.
“Authorized Users” mean any employee, subcontractor, representative or agent designated by Client, Client and BlueOrange who is authorized to use the Service and assigned an Authorized User identification by BlueOrange.
“Client” shall mean the party or entity designated by BlueOrange and the Customer of an Affiliation Agreement with BlueOrange to receive the Services (defined below) pursuant to the terms of an Affiliation Agreement and the applicable Purchase Order.
“Confidential Information” means any information that is disclosed by either Party to the other verbally, electronically, visually, or in a written or other tangible form which is either identified by the disclosing Party as confidential or proprietary or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, trade secrets, patented or copyrighted information, computer applications, software, user interfaces, software documentation and/or specifications, formulas, data, inventions, algorithms, techniques, processes, marketing plans, strategies, business models, forecasts, training materials, proprietary policies and procedures, proprietary forms, Services documentation, logs, questionnaires, reports and third-party confidential information. “Confidential Information” does not include any information that the receiving Party can demonstrate is: (a) rightfully known prior to disclosure; (b) rightfully obtained from a third Party authorized to make such a disclosure, without breach of the terms and conditions of this Agreement; (c) independently developed by the receiving Party as demonstrated by contemporaneous documents; (d) available to the public without restrictions; (e) approved for disclosure with the prior written approval of the disclosing Party; or (f) disclosed by court order or as otherwise required by law, provided that the Party required to disclose the information provides prompt advance notice to enable the other Party to seek a protective order or otherwise prevent such disclosure.
“Customer” means collectively the party identified in the applicable Purchase Order and Affiliation Agreement.
“Deliverables” means all documents, designs, prototypes, products, work product, hardware, software, source code, object code, files, libraries, reports, Services documentation, policies and procedures, logs, reports and other materials, including without limitation, new combinations of Pre-Existing Materials, that are delivered by BlueOrange under a Purchase Order.
“Intellectual Property Rights” means all rights in or to any intellectual property, including patents, trademarks, copyrights, trade secrets, and any derivative works, applications and/or registrations thereto. Nothing in this Agreement will be construed to confer any rights upon either Party by implication or otherwise as to any technology or Intellectual Property Rights of the other Party or its affiliates other than as expressly set forth in this Agreement.
“Pre-Existing Materials” means all documents, information and materials provided by one Party to the other under this Agreement that existed prior to the commencement of this Agreement including but not limited to computer applications, data, reports and specifications.
“Purchase Order” means each order form that specifies the details of the Services and other Deliverables executed from time-to-time by the Parties, which shall be governed by the terms and conditions of this Master Service Agreement and these Terms and Conditions.
“Services” means the compliance and security solutions, services and Deliverables provided by BlueOrange to Client under this Agreement and as specified in an applicable Project Sheet.
1.2 Services. BlueOrange agrees to provide the Services to Client detailed in an applicable Purchase Order subject to the terms and condition of the Agreement.
1.3 Purchase Order. Each Purchase Order is incorporated in and made a part of this Agreement. The Purchase Order may be appended to this Agreement as an attachment. Each Purchase Order will include:
(a) A description of the Services;
(b) Details of any Deliverables, deadlines and milestones;
(d) The payment terms; and
(e) The effective start and end dates of each Purchase Order and such other terms as agreed to by the Parties.
In the event of a conflict of terms between an applicable Purchase Order and this Blue Orange Master Service Agreement, the terms of the Purchase Order will prevail.
1.4 License. BlueOrange grants to Client a limited, non-exclusive, terminable, non-transferable license to access and use the Services and Deliverables for Client’s internal business purposes. This access is limited to the specific number of concurrent Authorized Users as specified in a Purchase Order.
1.5 License Restrictions. Unless otherwise provided for in this Agreement, Client may not directly or indirectly: (a) resell, transfer, assign, time-share or rent the Services or Deliverables; (b) Attempt unauthorized access to the Services; (c) Copy, modify, create a derivative works, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract and use source code of the Services; (d) Use any robot, spider, application, or other manual or automatic device or process to retrieve, index, “data mine,” scrape, or copy BlueOrange’s databases; (e) Export or re-export the Services in violation of any United States export law or regulation; (f) Use the Services in violation of this Agreement, applicable laws and regulations, or (g) Use the Services in violation of any third party rights.
1.6 Delays. BlueOrange will not be deemed in breach of this Agreement or any deadlines for delays caused by Client. Except as otherwise provided in the applicable Project Sheet, in the event of any such delays caused by Client (a) all of BlueOrange’s deadlines will be extended as necessary and (b) Client must continue to make timely payments of Fees to BlueOrange under the deadlines detailed in this Agreement and the Project Sheet.
1.7 Client’s Obligations. Client will designate one or more persons to serve as a point of contact with BlueOrange, provide BlueOrange with reasonable and timely cooperation to enable the implementation of the Services, and assume all responsibility and liability for the misuse of the Services by its users. Client further will provide BlueOrange (a) timely access to accurate and complete Client Data, (b) all decisions and approvals so as not to delay or impede the performance of the Services and (c) such access as necessary for BlueOrange to provide the Services as required under this Agreement.
1.8 Change Order. Client may request in writing to change the scope or performance of the Services, which may involve, among other things, additional Deliverables or additional travel by BlueOrange personnel. BlueOrange will not more than ten (10) business days after receipt of Client’s written request provide a written estimate to Client of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Services arising from the requested change; (c) the likely effect of the change on the Services; and (d) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”), which agreement may be acknowledged in an email. Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with this Section 1.8.
1.9 Contractors and Consultants. Client may allow third-party consultants, legal counsel and contractors to access the Services and Deliverables on Client’s behalf (“Contractors”), provided that (a) such disclosures are on a need to know basis only; (b) BlueOrange must approve in writing access to a Contractor for use outside of Client’s controlled environment; and (c) any Contractor’s access and use of the Services shall be in accordance with this Agreement. Client acknowledges and agrees that it is liable to BlueOrange for any use or disclosure of the Services by any Contractor in violation of this Agreement, which if done by Client would be a breach of this Agreement.
1.10 Consent. Client consents to BlueOrange’s provision of the Services as stated in the applicable Purchase Order.
- FEES. Terms for fees shall be stated in the applicable Purchase Order.
- PROPRIETARY RIGHTS. All right, title and interest and all Intellectual Property Rights in and to the Pre-Existing Materials of each respective Party or a third party shall vest in and be the sole and exclusive property of that Party or such third party. In addition, all right, title, and interest in and to the Services and all Intellectual Property Rights in the foregoing will remain vested in BlueOrange.
- CONFIDENTIAL INFORMATION. Neither Party will use any Confidential Information of the disclosing Party except as expressly permitted in this Agreement or as expressly authorized in writing by the disclosing Party. Each Party shall use the same degree of care to protect the disclosing Party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither Party may disclose the other Party’s Confidential Information to any person or entity other than the receiving Party’s officers, employees, consultants and legal advisors who need access to such Confidential Information to affect the intent of the Agreement except as required by law or legal process. Each individual or entity receiving Confidential Information pursuant to this subsection must have entered into a written confidentiality agreement the sole objectives of which are to further the intent of this Section 4. Each Party agrees to notify the other of any unauthorized use or disclosure of Confidential Information and to provide reasonable assistance to such other Party, and its licensors, in the investigation and prosecution of such unauthorized use or disclosure.
5.1 Initial Term. Unless otherwise provided below, the term of this Agreement shall be effective from the Effective Date and expire as stated in the applicable Purchase Order.
5.2 Termination. This Agreement, and any Purchase Order referencing this Agreement, may be terminated as follows: (a) by either Party upon sixty (60) days’ advanced notice so long as the effective date of the termination occurs after the expiration or termination of any and all Project Sheets; (b) by BlueOrange, if Client fails to make any payment due hereunder, and fail to cure such breach within 30 days after receiving written notice, in which all sums due, and to become due hereunder, become immediately payable; (c) by a Party if the other Party materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach; (d) by a Party if a receiver is appointed for the other Party, (e) by a Party if an assignee is appointed for the benefit of creditors of a Party; or (f) by a Party in the event of the insolvency or inability of the other Party to pay debts as they become due, except as may be prohibited by applicable bankruptcy laws.
5.3 Effects of Termination. Upon termination or expiration of this Agreement, all rights to access and use the Services terminate automatically and immediately. Client shall be required to pay any undisputed Fees accrued through and including the termination date.
- DATA AND SECURITY.
6.1 Client Data. The Parties acknowledge, that as between them, all data entered by the Authorized Uer or its representatives into the Applications or BlueOrange’s systems (“Client Data“) is owned by the Client.
(a) Security. In addition to the warranties provided below, BlueOrange represents, warrants and covenants that, at all times during the term of the Agreement, its collection, access, use, processing, storage, disposal and disclosure of Client Data does and will comply with all applicable federal, state, and foreign privacy, data protection, and data security laws and regulations BlueOrange will hold such Client Data under the strictest confidence and shall refrain from disclosing any personal health information, except with the prior written authorization of the subject, pursuant to a valid order by a court of competent jurisdiction, or as otherwise provided by law or regulation, including but not limited to the Health Insurance Portability and Accountability Act and all regulations promulgated thereunder (“HIPAA”).
(b) Business Associate Agreement. To the extent required under applicable laws, the Parties agree to enter into a separate Business Associate Agreement (the “Business Associate Agreement”) which sets forth the mutual promises and obligations of the Parties with regard to HIPAA and the Services. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated or regulatory guidance issued in support thereof, as amended from time to time. BlueOrange will enter into a HIPAA compliant business associate agreement to the extent necessary with any affiliate and/or subcontractor that will have access to protected health information in connection with providing Services.
6.3 Performance Analytics. BlueOrange may use de-identified data from its clients to create aggregated and/or anonymized statistics concerning use of the Services (the “Aggregate Data”). BlueOrange may use the Aggregate Data to analyze general industry trends, identify general performance issues among its customers, and provide bench-marking data to its customers; provided, that the Aggregate Data shall not identify Client or disclose any data that would identify Customer as the source of any specific piece of data. BlueOrange’s use of such data under this section shall not disclose Confidential Information and shall not include any personally identifiable information. BlueOrange shall own such Aggregated Data.
- LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO THE INDEMNITY AND CONFIDENTIALITY PROVISIONS CONTAINED IN THESE TERMS AND CONDITIONS, IN NO EVENT WILL EITHER PARTY, ITS REPRESENTATIVES, LICENSORS, SUCCESSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY CONSEQUENTIAL OR INCIDENTAL LOSSES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE OR OF DATA, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR EACH PARTY’S OBLIGATION TO INDEMNIFY THE OTHER, IN NO EVENT SHALL EITHER PARTY’S OBLIGATION TO THE OTHER PARTY EXCEED THE AMOUNT OF FEES THAT CLIENT PAID TO BLUEORANGE WITHIN THE IMMEDIATE SIX MONTHS OF THE TIME THE REQUEST FOR A CLAIM IS MADE TO A PARTY. THE PARTIES AGREE THAT THE TERMS IN THIS LIMITATION OF LIABILITY SECTION REPRESENT A REASONABLE ALLOCATION OF RISK.
- WARRANTIES AND DISCLAIMERS.
8.1 Mutual Warranties. Each Party warrants to each other that (a) it has the right and authority to enter into and to grant the rights and perform the obligations described in this Agreement, (b) its performance under this Agreement will not violate any obligations with a third party, (c) each Party shall perform its obligations in compliance with all applicable laws and regulations, and (d) its performance under this Agreement will not violate the obligations that the Party has with any third party.
8.2 Service Warranties. BlueOrange further warrants that it will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner and in accordance with generally recognized standards for similar services. Client’s exclusive remedy and BlueOrange’s sole liability under this Section 8.2 shall be for BlueOrange to use commercially-reasonable efforts to correct any material failure of the Services. If BlueOrange cannot after commercially-reasonable efforts remedy such failure, Client may terminate this Agreement and reserves all rights under law.
8.3 Virus Warranty. BlueOrange warrants that it will use its best efforts to ensure that the Services do not contain any software “viruses,” “key lock” mechanisms or other malicious code and that none will be introduced into the system by BlueOrange. BlueOrange agrees to maintain the operating systems and third-party software and remain current on all software upgrades and patches.
8.4 Acceptance. Client will be deemed to have accepted all Service unless Client, within thirty (30) days after delivery of the Services and all Deliverables notifies BlueOrange of any deficiencies and identifies with reasonable specificity any deficiencies regarding the Services. Upon receipt of the notice, BlueOrange will investigate the deficiency and remedy the deficiency at no additional charge to Client.
8.4 Mutual Disclaimers. EXCEPT AS PROVIDED ABOVE, EACH PARTY MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, CURRENCY, COMPLETENESS, AND FITNESS FOR A PARTICULAR PURPOSE.
- INTELLECTUAL PROPERTY CLAIM.
9.1 Intellectual Property Claim Regarding BlueOrange’s Services. If Client’s use of any component of the Services in accordance with this Agreement is, or in BlueOrange’s opinion is likely to be, enjoined due to a claim that such component infringes any U.S. patent, copyright or trademarks issued as of the Effective Date, or incorporates any misappropriated trade secrets (as defined in the Uniform Trade Secret Act), BlueOrange may, at its sole option and expense: (i) procure for Client the right to continue using such Services under the terms of this Agreement; (ii) promptly replace or modify such Service so that it is non-infringing and substantially equivalent in function to the enjoined; or (iii) terminate Client’s rights and BlueOrange’s obligations hereunder with respect to such Services with no further liability. Client must notify BlueOrange promptly in writing of a claim that is brought to Client’s attention.
9.2 Exception. BlueOrange’s obligations under this Section 9 will not apply to the extent that the claim is based on: (i) modification to the Services made without BlueOrange’s authorization; (ii) Client distributes or provides access to the Services for the benefit of any unauthorized third Party; (iii) Client’s combination of the Services with other systems, products, processes or materials to the extent that such claim would have been avoided without such combination use of the Services. BlueOrange’s commitment set forth in this Section 9 provides Client the exclusive remedy for third-party infringement and trade secret misappropriation claims.
10.1 Claims. Each Party agrees to indemnify, defend and hold harmless each other from and against any and all actual or threatened claims, actions, damages, liabilities, costs and expenses, including without limitation reasonable attorney’s fees and expenses, arising out of or in connection with: (a) the breach of any representation, warranty or obligation under this Agreement, (b) the other party’s failure to comply with any applicable law or regulation; or (c) injury or damages caused by the other party’s gross negligence or willful misconduct.
10.2 Indemnified Party’s Obligations. The Party seeking indemnification (the “Indemnified Party”) shall:
(a) Promptly notify the other Party (the “Indemnifying Party”) in writing of any third-party claim subject to indemnification within ten (10) business days that the pleading, demand letter or other notice is served upon the Party; and
(b) Cooperate in a reasonable manner with the Party providing the indemnification.
10.3 Indemnifying Party’s Obligations. The Indemnifying Party shall have control of the defense or settlement; provided, however, that the Indemnifying Party shall not enter into any settlement that obligates the indemnified Parties to take any action or incur any expense without such Indemnified Parties’ prior written consent, and further provided that the indemnified Parties shall have the right to be represented by independent counsel of their own choosing, at their own expense, in connection with such claim or suit.
10.4 Failure to Defend. If the Indemnifying Party fails to defend such suit, then the indemnified Parties, through counsel of their own choice, shall, at the expense of the Indemnifying Party, shall have the right to conduct the defense of such claim; provided however that the indemnified Parties shall not enter into any settlement that obligates the Indemnifying Party to take any action or incur any expense without the Indemnifying Party’s prior written consent.
11.1 Publicity. The Parties shall work together in good faith to prepare and issue a mutually agreed upon press release announcing the relationship established by this Agreement, as well as other press releases as may be mutually agreed upon from time to time. In addition, BlueOrange will have the right to include quotes from Client in its press releases upon Client’s prior approval of such quotes, which approval will not be unreasonably withheld, conditioned or delayed. Subject to Client’s prior review and approval, which approval will not be unreasonably withheld, BlueOrange may refer to Client in press releases, product brochures, marketing materials in any medium, Web sites, social media, presentations, financial reports and prospectuses indicating that Client are one of our customers, and may use Client as a reference for sales and public relations purposes.
11.2 Assignment. Neither Party may assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of the other Party. A Party will not unreasonably withhold consent. Notwithstanding anything contrary above, either Party may assign this Agreement upon notice to the other Party in the event of a merger, reorganization or acquisition of substantially all of its assets by another party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
11.3 Amendment. This Agreement may be modified only in a writing signed and/or authenticated by each Party.
11.4 Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy.
11.5 Choice of Law; Arbitration. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Ohio.
(a) The Parties intend to resolve any disputes between them whenever possible by mutual and voluntary settlement rather than through any binding dispute resolution process. In support of this, the Parties acknowledge that if a dispute arises out of or relates to this agreement or the breach thereof, and if the dispute cannot be settled through negotiation, the Parties agree first to submit their dispute to non-binding arbitration administered by the American Arbitration Association under its Non-Binding Arbitration Rules before resorting to binding arbitration, litigation, or some other dispute resolution procedure.
(b) The Parties recognize that non-binding arbitration is a process to assist them to resolve their disputes by making their own free and informed choices, and that a neutral arbitrator will have no authority to impose a binding award on any Party but only to issue an advisory decision. The non-binding award cannot be entered as a judgment in any court, except on mutual consent of the Parties, nor can it be cited as evidence or precedent with any preclusive effect in any court, arbitration, or other proceeding. If the non-binding arbitration is not completed and the Parties do not reach a mutually agreeable settlement within 120 days after initiation of the non-binding arbitration, any Party to this Agreement may bring action in the state and federal courts located in Franklin County, Ohio. In any proceeding under this section of the Agreement, the non-prevailing Party shall bear all costs, including reasonable attorneys’ fees incurred by the other Party. The non-binding arbitration will take place at a reasonably convenient location to be agreed upon by the parties or determined by the arbitrator. In addition, the Parties will cooperate in using telephone, or videoconference or online options when the technology is available; to ensure that the process is as cost efficient and equitable for all parties as is practicable.
(c) Notwithstanding the foregoing, either Party has the right to seek any interim or preliminary relief from a court of competent jurisdiction in Ohio in order to protect the rights of such Party pending the completion of any arbitration hereunder, and both parties agree to submit to the exclusive jurisdiction of the courts of the State of Ohio and venue in Franklin County, Ohio for any such proceeding.
11.6 Notices. All notices required under this Agreement must be in writing and refer to the title and Effective Date of this Agreement. Notices shall be effective upon (a) actual delivery to the other Party, if delivered in person, or by facsimile, or by national overnight courier; or (b) five business days after being mailed via U.S. postal service, postage prepaid. All notices shall be sent to the address stated in this Agreement or at such other address as either Party may provide by advance written notice in accordance with this subsection.
11.7 Independent Entities. The parties are independent entities. Each Party is not an employee, agent, partner, joint venture or legal representative of the other for any purpose. Neither Party shall have any right, power or authority to create any obligation or responsibility on behalf of the other solely as a result of this Agreement.
11.8 Severability. Any provision of this Agreement that is held to be unenforceable in any jurisdiction shall be ineffective only as to that jurisdiction, and only to the extent of the unenforceability of such provision without invalidating the remaining provisions hereof.
11.9 Force Majeure. Except for Client’s obligations to make payment hereunder, neither Party will be deemed to be in breach of this Agreement, or be entitled to damages or credits pursuant to this Agreement, for any failure or delay in performance caused by reasons beyond its reasonable control, caused by the other Party or by an act of God, war, civil disturbance, court order, labor dispute, or other cause beyond its reasonable control, including without limitation failures or fluctuations in power, heat, light, air conditioning or telecommunications equipment.
11.10 Complete Understanding. This Agreement, including all schedules, offer terms, orders, exhibits and attachments, constitutes the final and complete agreement between the parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written. The United Nations Convention on Contracts for the International Sale of Goods shall not govern these Terms. These Terms and Conditions may be accepted and signed electronically.
11.11 Survival. Sections 1.5, 3, 4, and 6 to 11 shall survive the termination or expiration of this Agreement.
11.12 Discrepancy. The terms of the Master Service Agreement take precedent over this Terms and Conditions.