1. OBJECT OF TULA
1.2 By using BB Platform Licensee is able to manage a group of physical or digital objects linked to a digital experience through NFC, QR, URL, WiFi, Bluetooth or any other connectivity protocol (“Objects”), and to manage the content associated with those Objects ("Object-Data") and use further functionalities of BB Platform.
1.3 This TULA sets out the terms applicable for the use of BB Platform by Licensee and the rights and obligations of BLUE BITE and Licensee (BLUE BITE and Licensee together as "Parties" or individually as "Party").
1.4 In this TULA, (“Order Form”) indicates an ordering document or online order specifying the Services to be provided hereunder that is entered into between Licensee and BLUE BITE, including any addenda and supplements thereto. (”Purchased Services”) indicates Services that Licensee purchases under an Order Form, as distinguished from those provided pursuant to a free trial.
1.5 In this TULA, (“Interaction Data”) indicates data generated as a result of an interaction by a networked device with an Object.
2. CHANGES TO TULA
2.1 These Terms are a binding agreement between Licensee and BLUE BITE. BLUE BITE reserves the right to modify this TULA at any time and without prior notice by publishing the most current version of the TULA on the following website: http://www.bluebite.com/tula. Licensee's use of BB Platform and related services is governed by the version of the TULA in effect on the date BB Platform is accessed by Licensee.
3. USER ACCOUNT
3.1 Use of BB Platform requires the registration of a user account. There is no right to registration. BLUE BITE reserves the right to reject applications for registration without giving any reason.
3.2 BB Platform is a business platform for business customers of BLUE BITE. Therefore, consumers as well as minors and persons with limited legal capacity are not permitted to register.
3.3 Licensee may apply for several user accounts for named employees of Licensee ("Named Users"). These Named User accounts shall be deemed user accounts of Licensee and Licensee shall be fully liable for all Named User accounts.
3.4 BLUE BITE will grant the access to and use of BB Platform to registered users.
4. REGISTRATION PROCESS
4.1 During the registration process Licensee applies for access to BB Platform by issuing a respective request to BLUE BITE (by e-mail or telephone) containing a valid e-mail address of Licensee and all Named Users ("Licensee Data").
4.2 Upon acceptance of Licensees registration request BLUE BITE will provide Licensee with passwords linked to the email addresses of Licensee and the Named Users.
5. RESPONSIBILITY FOR LOGIN DATA
5.1 Licensee is obliged
5.1.1 to keep all registration data according to section 4.2 ("Login Data") confidential, not to communicate or disclose the Login Data to third parties (including without limitation other individuals within its organization, company or legal entity) and to protect the Login Data against intentional or accidental notice by third parties. No third party must be enabled to use the Login Data;
5.1.2 to inform BLUE BITE immediately if Licensee has reason to assume that third parties have become aware of the Login Data or has indications of any form of unauthorized use of the Login Data;
5.1.3 not to provide access to BB Platform to third parties.
5.2 Licensee shall ensure that Named Users also comply with the obligations according to section 5.1.
5.3 BLUE BITE shall not be liable for any damages resulting from any unauthorized use of BB Platform by third parties.
5.4 Licensee shall be fully liable for each and every use or abuse of BB Platform and related software, computer systems and services which may be executed using Licensee's or a Named User's Login Data, unless Licensee can prove that such unauthorized use was not caused by actual fault of Licensee.
6. UPDATE OF DATA
Licensee shall keep updated the Licensee Data at all times and shall inform BLUE BITE about any change of the Licensee Data by amending the Licensee Data in the personal settings of BB Platform or, in case this is not possible, by sending the amended Licensee Data to BLUE BITE.
7. FEES AND PAYMENT FOR PURCHASED SERVICES
7.1 Fees. Licensee will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on the SaaS tier selected, and not actual usage, except in the case of the Enterprise tier, as described in the SaaS agreement, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
7.2 Invoicing and Payment. Licensee will provide BLUE BITE with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to BLUE BITE. If Licensee provides credit card information to BLUE BITE, Licensee authorizes BLUE BITE to charge such credit card for all Purchased Services. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, BLUE BITE will invoice Licensee in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Licensee is responsible for providing complete and accurate billing and contact information to BLUE BITE and notifying BLUE BITE of any changes to such information.
7.3 Overdue Charges. If any invoiced amount is not received by BLUE BITE by the due date, then without limiting BLUE BITE rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) BLUE BITE may condition future subscription renewals and Order Forms on payment terms shorter.
7.4 Suspension of Service and Acceleration. If any amount owing by Licensee under this or any other agreement for BLUE BITE services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized BLUE BITE to charge to Licensee credit card), BLUE BITE may, without limiting BLUE BITE other rights and remedies, accelerate Licensee unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend BLUE BITE services to Licensee until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, BLUE BITE will give Licensee at least 10 days prior notice that Licensee account is overdue, before suspending services to Licensee.
7.5 Payment Disputes. BLUE BITE will not exercise BLUE BITE rights under Section 7.3 (Overdue Charges) or 7.4 (Suspension of Service and Acceleration) above if Licensee is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
7.6 Taxes. BLUE BITE fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Licensee is responsible for paying all Taxes associated with Licensee purchases hereunder. If BLUE BITE has the legal obligation to pay or collect Taxes for which Licensee is responsible under this Section 7.6, BLUE BITE will invoice Licensee and Licensee will pay that amount unless Licensee provides BLUE BITE with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, BLUE BITE is solely responsible for taxes assessable against BLUE BITE based on BLUE BITE income, property and employees.
7.7 Future Functionality. Licensee agrees that Licensee purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by BLUE BITE regarding future functionality or features.
8.1 If Licensee registers on BLUE BITE website for a free trial, BLUE BITE will make one or more Services available to Licensee on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Licensee registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Licensee for such Service(s), or (c) termination by BLUE BITE in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
8.2 ANY DATA LICENSEE ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR LICENSEE, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS LICENSEE PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. LICENSEE CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO BUSINESS EDITION); THEREFORE, IF LICENSEE PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, LICENSEE MUST EXPORT LICENSEE DATA BEFORE THE END OF THE TRIAL PERIOD OR LICENSEE DATA WILL BE PERMANENTLY LOST.
DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
9. WITHDRAWAL OF ACCESS RIGHTS
9.1 BLUE BITE is entitled to temporarily or permanently withdraw or limit Licensee's or a Named User's access rights to BB Platform, related services, and/or content provided via BB Platform, in particular Object-Data which were previously granted to Licensee by deactivating Licensee's or the respective Named User's Login Data if BLUE BITE has reason to assume that Licensee itself or a Named User violates or has violated any provision of this TULA or applicable statutory provisions.
9.2 BLUE BITE will inform Licensee via e-mail about a withdrawal of Licensee's or a Named User's access rights.
9.3 In case of a temporary withdrawal BLUE BITE will reactivate Licensee's or the Named User's Login Data after expiration of an adequate time period corresponding to the respective (assumed) violation of the TULA or statutory provisions. BLUE BITE will inform Licensee about the re-activation of the Login Data via e-mail.
9.4 In case of a permanent withdrawal Licensee's or the Named User's Login Data cannot be re- activated and Licensee or the respective Named User shall be permanently excluded from the use of BB Platform.
9.5 Licensee's obligation to pay the agreed royalty, if any, shall remain unaffected by a withdrawal of Licensee's or a Named User's access rights. In case of a permanent withdrawal Licensee's payment obligation shall remain unaffected until this TULA has been validly terminated by either Party.
10. TERMINATION OF USE
10.1 This TULA is concluded for an indefinite term. BLUE BITE may terminate this TULA for any reason upon ninety (90) days advance notice to the other Party. The notice may be issued by E-Mail. Licensee may terminate this TULA for any reason upon 4 weeks advance written notice, however, at the earliest 3 months after the TULA becomes effective.
10.2 The Parties' right of termination for cause shall remain unaffected.
10.3 Upon the termination becoming effective BLUE BITE is entitled to block Licensee's user account and disable Licensee's and the Named Users' Login Data.
10.4 BLUE BITE is entitled to delete all of Licensee's data upon expiration of 90 days after the termination becomes effective and after the expiration of legal obligations to keep data records.
11.SERVICES AND AVAILABILITY
11.1 BB Platform services consist of making available Object-Data to Licensee via a web user interface accessible through the BLUE BITE website and providing query and reporting capabilities as well as tag license management services.
11.2 BLUE BITE will use its best endeavors to provide access to BB Platform and all or certain parts of the Object-Data and related services subject to this TULA and applicable special terms. BLUE BITE reserves the right to improve, expand, change or delete Object-Data in whole or in part (e.g. in relation to functionalities).
11.3 BLUE BITE will use reasonable endeavors to hold access to BB Platform available to Licensee at any time. However, there may occur service interruptions or performance problems due to technical reasons, e.g. electricity shortfalls, emergency repairs, failure of telecommunication systems, maintenance, or network problems. BLUE BITE will make reasonable efforts to minimize such disruptions where it is within BLUE BITE's reasonable control.
12. RIGHTS OF USE
12.1 BB Platform and Object-Data are protected under copyright law and other statutory provisions. BLUE BITE grants to Licensee the revocable, non-exclusive, non-transferable, worldwide right to access BB Platform and use the BB Platform functionalities provided by BLUE BITE, including access to Object-Data, for its own internal business purposes
12.2 In case of a withdrawal of the registration or the termination of this TULA – regardless of the reason – the right of use set forth above will lapse, in case of a temporary withdrawal limited to the period of such withdrawal according to section 7.3.
12.3 Except as expressly permitted in this TULA, Licensee shall not (and shall not allow any third party to)
12.3.1 decompile, disassemble, or otherwise reverse engineer BB Platform (except to the extent expressly permitted under applicable law); or
12.3.2 provide, lease, lend, use for timesharing or otherwise use or allow others to use BB Platform, related services and/or content provided via BB Platform, in particular Object-Data, to or for the benefit of third parties.
13.1 Use of BB Platform and access to Object-Data shall be purchased from BLUE BITE according to BLUE BITE’s respective current pricing list.
13.2 Any royalty for access to Object-Data will be invoiced by BLUE BITE after issuance of a respective purchase order by Licensee. Payment will be due within 30 days after reception of the invoice by Licensee.
14 NO ILLEGAL, HARMFUL OR OFFENSIVE USE
14.1 Licensee shall
14.1.1 refrain from any form of unauthorized use of BB Platform, related services, or content provided via BB Platform, in particular Object-Data, including but not limited to attempts made to overcome or circumvent the security mechanisms of BB Platform or to otherwise incapacitate them, using computer programs enabling automatic data readouts, as well as using and/or circulating viruses, worms, Trojans, brute force attacks, spam or using other links, programs or procedures that are suited to damage BLUE BITE, BB Platform, content provided via BB Platform, in particular Object-Data, or other users; and
14.1.2 take all necessary and reasonable steps to prevent or limit damage caused by the use of BB Platform, related services, or content provided via BB Platform, in particular Object-Data, in particular to arrange for the regular backup of its own data outside BB Platform.
14.1.3 not use or cause or encourage others to use BB Platform for any illegal, harmful or offensive purposes. This includes transmitting, storing, displaying, distributing or otherwise making available content that is illegal, harmful or offensive, such as:
i. content that infringes or misappropriates any third party or third party rights, in particular intellectual property rights;
ii. content that is defamatory, obscene, abusive, invasive of privacy, racist, sexually explicit, liable to have an undesirable influence on the moral development of young people or otherwise objectionable.
14.1.4 perform or cause or encourage others to perform any activity that may impair frictionless operation of BB Platform, including but not limited to
a. Denial of Service (DoS) attacks,
b. overloading the system by mail bombing, news bombing, broadcast attacks, or flooding techniques;
c. monitoring or crawling techniques.
15. DATA PROTECTION
15.1 All data provided by BLUE BITE via BB Platform are non-personal data.
15.2 Licensee may collect, process or use personal data in the context of using BB Platform. Personal data shall have the meaning provided in Data Protection Directive 95/46/EC.
Any Licensee that collects personal data shall develop, implement, and maintain a comprehensive information security program that is written in one or more readily accessible parts and contains administrative, technical, and physical safeguards that are appropriate to (a) the size, scope and type of business of the Licensee obligated to safeguard the personal data under such comprehensive information security program; (b) the amount of resources available to such Licensee; (c) the amount of stored data; and (d) the need for security and confidentiality of both consumer and employee information. The safeguards contained in such program must be consistent with the safeguards for protection of personal data and information of a similar character set forth in any state or federal regulations by which the Licensee who collects such information may be regulated.
i. has Licensee’s consent for any Interaction Data;
ii. concludes that it is required by law or has a good faith belief that access, preservation or disclosure of Interaction Data is reasonably necessary to protect the rights, property or safety of Blue Bite, its users or the public.
16. NO WARRANTIES, INDEMNITIES OR LIABILITIES
16.1 BLUE BITE shall neither be held liable for third party content, nor shall it be liable for any damages or other failures resulting from any defects of Licensee's software or hardware or their incompatibility with BB Platform. BLUE BITE shall also not be liable for any damages or other failures resulting from the fact that the Internet was not available or malfunctioning.
16.2 The use of BB Platform and the respective services requires the use of special technical systems such as end user devices, software programs, transmission networks, telecommunications and other services provided by third parties, all of which may entail further costs. BLUE BITE does not provide such end user devices, software programs, communication channels, telecommunications services or other services and therefore will not assume any liability for such services provided by third parties.
16.3 BB PLATFORM IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
16.4 NOTWITHSTANDING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BLUE BITE OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES, WHATSOEVER, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, THE CLAIMS OF THIRD PARTIES, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE BB PLATFORM, OR ARISING OUT OF THIS AGREEMENT, EVEN IF BLUE BITE OR ITS REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. NO ASSIGNMENT
Licensee shall not be entitled to assign any rights or claims under this TULA without the prior written consent of BLUE BITE.
18. NO REPRESENTATION
The registration does not authorize either of the Parties to make any legally binding declarations on behalf of both Parties together, or on behalf of the respective other Party, nor does it authorize them to place the respective other Party under any obligation or to represent it in any other way.
19. NO SET-OFF
Except as otherwise provided in this TULA, no Party shall be entitled to set-off any claims it may have under this TULA against any claims any other Party may have under this TULA unless the rights or claims of the Party claiming a right of set-off are not disputed or have been confirmed by final decision of a competent court or arbitral tribunal or – if claimed in legal proceedings – a decision on the rights and claims of the Party can be taken in the last oral hearing.
20. CHOICE OF LAW AND JURISDICTION
This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws rules. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Exclusive place of jurisdiction for all disputes regarding rights and duties under this TULA, including its validity shall be the City of New York.
Should one or more provisions of this TULA be or become invalid or unenforceable, this shall not affect the validity and enforceability of the remaining provisions of this TULA. The same shall apply if the TULA does not contain an essential provision. In lieu of the invalid or unenforceable provision, or to fill a contractual lacuna, such valid and enforceable provision shall apply which reflects as closely as possible the commercial intention of the Parties as regards the invalid, unenforceable or missing provision.