Subscription Services Agreement
This agreement is between Blue Compass Software, LLC, a New Jersey limited liability company (BCS), and the entity or individual agreeing to these terms (Customer).
1) WEB-BASED SOFTWARE AS A SERVICE. This agreement provides Customer access to a proprietary web-based software service as specified with the main features listed below:
- Allows uses to enter data, edit data, and delete data,
- Displays and illustrates, through both graphic and tabular representations, user data for display, copy and use, and
- Filters, sorts, and edits user data.
BCS will provide this functionality through a URL (HTTPS://blueCompassSoftware.com) within a hosted cloud server environment under the terms below (Service). This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. Customer may allow its employees and contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its employees and contractors.
2) USE OF SERVICE.
a). BCS Responsibilities: BCS must provide customer support for the Service under the terms of BCS’s Customer Support Policy (CSP) which can be found on the Support tab found on the home page and is incorporated into this agreement for all purposes.
b). Customer Responsibilities: Customer (i) is solely responsible for Customer Data and all activity in its account in the Service, (ii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify BCS promptly of any such unauthorized access, and (iii) may use the Service only in accordance with the Service’s user guide and applicable law.
c). Restrictions: Customer may not (i) sell, resell, rent or lease the Service, (ii) use the Service to store or transmit infringing, unsolicited marketing emails or telephone calls, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights, (iii) interfere with or disrupt the integrity or performance of the Service, or (iv) attempt to gain unauthorized access to the Service or their related systems or networks.
d). Customer Owned Data: All data uploaded or entered by Customer remains the sole property of Customer, as between BCS and Customer (Customer Data). Customer grants BCS the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, upon request BCS will provide Customer the Customer Data (in only Microsoft .accdb or Excel format) for no charge once per year (each additional request per year will require a $500 fee).
e). Data Backup: BCS recommends that Customer backups its Customer Data. BCS offers a backup service of Customer Data, which may be purchased under an order.
f). Browser Access: Customer will access the Service using Microsoft’s Windows Internet Explorer 9 or later.
g). 30-Day Trial Version: If Customer has registered for a trial use of the Service, Customer may access the Service for a 30-day time period (unless extended by BCS). The Service is provided AS IS, with no warranty during this time period. All Customer data will be deleted after the trial period, unless Customer converts its account to a paid Service.
3) PAYMENT TERMS. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes (except for taxes based on the net income of BCS).
4) SERVICE LEVEL AGREEMENT/WARRANTY and REMEDY.
A). Service Availability Warranty. BCS warrants to Customer, (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding scheduled outages, force majeure, and outages that result from any Customer technology issues) and using 750 hours per month, (ii) the functionality or features of the Service may change but will not materially decrease during a paid term, and (iii) that the CSP may change but will not materially degrade during any paid term.
100 – 98% = 0% of monthly fee.
97.9 - 95% = 10% of monthly fee.
94.9 - 90% = 25% of monthly fee.
89.9 - 70% = 50% of monthly fee.
Less than 70% = 100% of monthly fee.
Maximum amount of the credit/refund is 100% of Service fees for the applicable month. Customer must report any outage, alerting BCS of the service outage, by filling out and submitting a support case request form, found on the Customer Support web page ( i.e., https://www.bluecompasssoftware.com/Support), or by manually creating a support case request and verbally receiving a ticket number from BCS by calling +1(646) 362-8728 or +1(732) 233-3667, and provide the generated ticket # when claiming a credit or refund.
B). LIMITED REMEDY AND DISCLAIMER. CUSTOMER’S EXCLUSIVE REMEDY AND BCS’S SOLE OBLIGATION FOR BREACH of the warranty in A(i) will be for BCS to provide a credit as provided in the chart above (if this agreement is not renewed, then a refund), for the impacted month; provided that Customer notifies BCS, as stipulated in 4) A), of such breach within 30 days of the end of that month.
OTHER THAN THE ABOVE WARRANTY, THE SERVICES ARE PROVIDED ‘AS IS’ AND BCS DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE MAY BE INTERRUPTED OR CONTAIN AN ERROR. BCS DOES NOT GUARANTY THAT THE SERVICE CANNOT BE HACKED.
CUSTOMER MAY RECEIVE DATA WITHIN THE SERVICE FROM THIRD PARTY DATA PROVIDERS. WHILE BCS USES DATA PROVIDERS IT BELIEVES ARE RELIABLE AND HAVE ACCURATE DATA, BCS DOES NOT GUARANTY THE AVAILABILITY OR ACCURACY OR TIMELINESS OF SUCH DATA. BCS DOES NOT PROVIDE ANY TYPE OF FINANCE, COMPLIANCE OR LEGAL ADVICE, AND CUSTOMER IS SOLELY RESPONSIBLE FOR THE RESULTS OF ITS WORK.
5) MUTUAL CONFIDENTIALITY.
a). Definition of Confidential Information. Confidential Information means all information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). BCS’s Confidential Information includes without limitation the Service and each of their parts and pricing (including without limitation the Service user interface design and layout).
b). Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c). Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.
d). Disclosure Required by Law. The Recipient may disclose Confidential Information to the extent required by law or court order, but will attempt to provide Discloser with advance notice to seek a protective order (unless otherwise required by law).
6) PROPRIETARY RIGHTS.
a). Reservation of Rights by BCS. The software, workflow processes, user interface, designs, know-how, and other technologies provided by BCS as part of the Service are the proprietary property of BCS and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with BCS. BCS reserves all rights unless expressly granted in this agreement.
b). Customer Restrictions. Customer may not:
- Reverse engineer the Service;
- Remove or modify any proprietary marking or restrictive legends in the Service; or
iii. Access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
7) EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
a). EXCLUSION OF CERTAIN DAMAGES. BCS IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, INACCURATE DATA, COSTS OF DELAY, LOSS OF DATA, RECORDS OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICE).
b). LIMITATION OF LIABILITY. BCS’S LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING 12 MONTHS UNDER THIS AGREEMENT.
8) TERM, TERMINATION, RETURN OF DATA AND SUSPENSION OF SERVICE.
a). Term. This agreement continues for the duration specified on the order and auto-renews for the duration as specified in the original order, unless cancelled by either party upon at least 30 days notice prior to the renewal date (Term).
b). Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice, if the breach has not been cured during this notice period.
- Actions upon Termination for Material Breach.
(w) Upon any termination as provided in 8(b) above by Customer, BCS must refund any prepaid and unused fees covering the remainder of the Term.
(x) Upon any termination as provided in 8(b) above by BCS, Customer must pay any unpaid fees and fees covering the remainder of the Term. The Service will also be terminated.
c). Return or Destroy BCS Property Upon Termination. Upon termination or expiration of this agreement for any reason, Customer must pay BCS for any amounts owed through the date of termination or expiration, and destroy or return all property of BCS. Customer will confirm its compliance with this destruction or return requirement in writing upon request of BCS.
d). Return of Customer Data.
- Within 60-days after termination, upon request BCS will provide the Customer Data in Microsoft .accdb or Excel format for a fee of $500.
- After such 60-day period, BCS has no obligation to maintain the Customer Data and may destroy it.
e). Suspension of Service for Violations of Law. BCS may immediately suspend the Service and remove applicable Customer Data if it in good faith believes that, as part of using the Service, Customer may have violated a law. BCS may try to contact Customer in advance, but it is not required to do so.
9) GOVERNING LAW AND FORUM. This agreement is governed by the laws of the State of New Jersey without regard to conflict of law principles. Any dispute arising out of or related to this agreement may only be brought in the state and federal courts for Monmouth County, NJ. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party.
10) MISCELLANEOUS OTHER TERMS.
a). Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
b). Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. No modification or waiver of any term of this agreement is effective unless in a signed writing.
c). No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.
d). Independent Contractors. The parties are independent contractors with respect to each other.
e). Enforceability. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
f). No Additional Terms. BCS rejects additional or conflicting terms of any Customer form-purchasing document.
g). Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h). Survival of Terms. Any terms that by their nature survive termination or expiration of this agreement, will survive.
i). CISG Not Apply. The Convention on Contracts for the International Sale of Goods does not apply.