Last Revised / Effective Date: July 17, 2020
Welcome to the electronic signature and document management service offered by Zava Global Partners LLC, dba BlueInk, (“BlueInk”, “Company”, “we,” “our” or “us”). The following terms and conditions (the “Terms” or “Agreement”) govern your access to and/or use of the BlueInk websites and services (collectively, the “BlueInk Service” or “BlueInk Services”). The BlueInk Data Processing Addendum is incorporated herein and applies to the extent you are using the BlueInk Services in the context of your data processing activities that are subject to the EU General Data Protection Regulation (“GDPR”). To the extent there is any conflict or contradiction between the provisions of the Terms and the BlueInk Data Processing Addendum, the provisions of the BlueInk Data Processing Addendum shall supersede and take precedence over the provisions of the Terms.
ARBITRATION NOTICE FOR US RESIDENTS ONLY: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION, AND A WAIVER OF JURY TRIALS AND CLASS ACTIONS AS SET FORTH BELOW – PLEASE READ THESE SECTIONS CAREFULLY.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to commit the entity to the Agreement and the term “you” or “your” will refer to that entity.
BY ACCESSING, REGISTERING FOR AND/OR USING THE BLUEINK SERVICES IN ANY MANNER YOU AGREE TO THE TERMS. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE BLUEINK SERVICES.
In addition to the terms otherwise defined in this Agreement or an Order Form, the following terms have the definitions below:
- “Customer”: an individual and/or entity that registers for a BlueInk account and/or purchases BlueInk Services.
- “Authorized User”: an individual person (e.g. employee, contractor, agent of a Customer) who is registered and permitted by a Customer to use the BlueInk Services
- “Order Form”: an optional separate written agreement signed by both BlueInk and Customer specifying prices, features, and/or additional terms between BlueInk and Customer.
- “Subscription Plan”: A plan, either paid or free, selected by a Customer that specifies the features and options of the BlueInk Services available to Customer, and the prices and payment terms (including any usage or overage fees) paid by Customer.
Description of BlueInk Services
BlueInk provides electronic signature and document management services, which includes but is not limited to online uploads, display, delivery, acknowledgment, and limited storage services for documents and/or electronic contracts. BlueInk also provides application programming interfaces (APIs) that allow BlueInk’s services to be incorporated into your website, application or other software systems. In addition, BlueInk publishes documentation, and various other resources on our websites to facilitate and promote the use of BlueInk Services.
Account Registration and Use
Use and Access Rights
Limited License. Subject to these Terms, BlueInk grants to Customer a limited, non-exclusive, non-transferable license to use and access the BlueInk Services for its business purposes as expressly permitted in these Terms. Your use and access to the Services are subject to any limitations set forth in an applicable Order Form and/or Subscription Plan (whether paid or free, collectively “Subscription Plan”).
General Restrictions. Customer must not (and must not allow any third party to):
- rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the BlueInk Service to a third party (except Authorized Users or as permitted under the Service Specific Terms);
- incorporate the BlueInk Service (or any portion of such) with, or use it with or to provide, any site, product, or service, other than on sites/applications owned-and-operated by Customer and as specifically permitted herein;
- publicly disseminate information regarding the performance of the BlueInk Service (which is deemed BlueInks’s Confidential Information);
- modify or create a derivative work of the BlueInk Service or any portion of it;
- reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any BlueInk Service, except to the extent expressly permitted by applicable law and then only with advance notice to BlueInk;
- break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the BlueInk Service, or configure the BlueInk Service (or any component thereof) to avoid sending events or transactions or to otherwise avoid incurring fees;
- distribute any portion of the BlueInk Service excepted as permitted herein;
- access the BlueInk Service for the purpose of building a competitive product or service or copying its features or user interface;
- use the BlueInk Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without BlueInk’s prior written consent; or remove or obscure any proprietary or other notices contained in the BlueInk Service, including in any reports or output obtained from the BlueInk Service.
- use or permit the Services to be used for any illegal or misleading purpose, or any manner inconsistent with these Terms.
- use any metatags and/or other “hidden text” using BlueInk’s name and/or trademarks;
Beta Releases and Free Access Subscriptions. BlueInk may provide Customer with a BlueInk Service for free or on a trial basis (a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage BlueInk Services, integrations, or features (“Beta Releases”), which are optional for Customer to use. This Section will apply to any Free Access Subscriptions or Beta Releases (even if Beta Releases are provided for a fee or counts towards Customer’s Subscription Plan) and supersedes any contrary provision in these Terms. BlueInk may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in these Terms, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH BLUEINK WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK. BlueInk makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. BlueInk may terminate Customer’s right to use any Free Access Subscriptions or Beta Releases at any time for any reason or no reason in BlueInk’s sole discretion, without liability
Privacy, Security & GDPR
General Data Protection Regulation (GDPR). These Terms incorporate the BlueInk Data Processing Addendum (“DPA”), available at https://blueink.com/data-processing-addendum/, when the GDPR applies to your use of the BlueInk Services to process Customer Data (as defined in the DPA).
Security. BlueInk protects your information from unauthorized use or disclosure by taking reasonable technical and organizational measures designed to secure our systems from unauthorized access, use or modification.
Ownership and Feedback
Aggregate/Anonymous Data. Customer agrees that BlueInk will have the right to generate aggregate or anonymous data and that aggregate or anonymous data is owned by BlueInk, which BlueInk may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve BlueInk’s products and services and to create and distribute reports and other materials). For clarity, BlueInk will only disclose aggregate or anonymous data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or end users, and that is stripped of all persistent or personal identifiers. Customer is not responsible for BlueInk’s use of aggregate or anonymous data.
BlueInk Intellectual Property. This is a subscription agreement for access to and use of the BlueInk Services. Customer acknowledges that it is obtaining only a limited right to use the BlueInk Services and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer (or its Authorized Users or end users) under these Terms. Customer agrees that BlueInk (and its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all BlueInk Services, and all related or underlying documentation, technology, code, know-how, logos, templates, anything delivered as part of support of other services, and any updates, modifications, or derivative works of any of the foregoing (all of which is deemed BlueInk’s Confidential Information) and that BlueInk reserves any licenses not specifically granted in these Terms. In the event Customer contracts with BlueInk to provide an additional feature and / or modification to the BlueInk Services and compensates BlueInk thereon, BlueInk retains all rights, title and interest to said additional feature and / or modification. Customer’s right to continued access to / use of said additional feature and / or modification is conditional upon Customer maintaining an active BlueInk subscription. BlueInk retains the exclusive right to make any further modifications to the BlueInk Service that in BlueInk’s sole discretion improve the BlueInk Service. Other than the applicable mobile applications and APIs, the BlueInk Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any BlueInk Service and that BlueInk at its option may make updates, bug fixes, modifications or improvements to the BlueInk Service from time-to-time.
Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to BlueInk (collectively, “Feedback”), Customer hereby grants BlueInk a worldwide, perpetual, non-revocable, sublicensable, royalty- free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in these Terms limits BlueInk’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Customer represents and warrants that its Customer Properties, and the collection, use, and disclosure of Customer Data will not violate any third-party rights, including intellectual property, privacy and publicity rights. Customer further represents and warrants that its collection and use of any personal information or data provided to BlueInk complies with all applicable data protection laws, rules, and regulations. If Customer receives any take down requests or infringement notices related to Customer Data, it must promptly: (i) stop using the related item with the BlueInk Service; and (ii) notify BlueInk. If BlueInk receives any take down requests or infringement notices related to Customer Data, BlueInk may respond in accordance with its policies, and will notify and consult with the Customer on next steps.
Electronic signature responsibilities: Customer acknowledges and agrees that: (i) as between BlueInk and Customer, Customer has exclusive control and responsibility for the content of all Customer Data, including any documents used with the Services; and,(ii) certain types of documents, agreements, or contracts may be excluded from general electronic signature laws (such as wills, trusts, court orders, or family law matters), or may have specific regulations that are applicable to them; and, (iii) Customer is solely responsible for ensuring that the documents, agreements or contracts it uses with the Services are appropriate for electronic signatures, and BlueInk is not responsible or liable for any such determination or use; and, (iv) Consumer protection laws or regulations may impose specific requirements for electronic transactions involving consumers, Customer is solely responsible for ensuring it complies with all such laws/regulations, and BlueInk has no obligations to make such determination or assist with fulfilling any requirements therein.
Subscription Plan. The prices, features, and options of the BlueInk Services depend on the Subscription Plan selected by Customer (including any usage or overage fees). BlueInk does not guarantee that your particular Subscription Plan will be offered indefinitely. We reserve the right to change the prices, features, or options included in a particular Subscription Plan without notice, provided that such changes shall not take effect until your next applicable subscription term.
Recurring Charges. By signing up for a Subscription Plan, Customer authorizes BlueInk to charge Customer’s payment method on a recurring basis (e.g. monthly, quarterly, or yearly depending on Customer’s Subscription Plan) without an invoice. Customer expressly authorizes BlueInk to charge its payment method (such as a credit card) for the applicable subscription charges, any usage or overage charges, and any and all applicable taxes and fees. Such authorization is effective until the end of the Subscription Term and any applicable Renewal Term, or until Customer cancels all of its subscriptions.
Taxes. BlueInk’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of BlueInk. Customer will not deduct any applicable taxes from the payments to BlueInk, except as required by law. If such deduction is required by law, Customer will increase the amount payable as necessary so that after making all required deductions and withholdings, BlueInk receives and retains (free from any such liabilities) an amount equal to the amount it would have received had no such deductions or withholdings been made.
Purchase Orders. Customer agrees that it will pay all amounts owed, including recurring charges, without any referenced purchase order number. If a purchase order is required, then Customer will promptly notify BlueInk at least thirty (30) days prior to such requirement and the parties will cooperate in good faith in implementing a billing process that includes references such purchase order numbers.
No Refunds. Except as expressly provided in these Terms, all charges and payments are non- refundable, non-cancellable, and non-creditable.
Late Fees & Collection Costs. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law. You agree to reimburse BlueInk for any costs or expenses incurred by BlueInk to collect amounts that remain unpaid after the due date. Amounts due to BlueInk may not be withheld or offset by you against amounts due for any reason.
Term and Termination
Term. These Terms are effective until all Subscription Terms for the BlueInk Services have expired or are terminated as expressly permitted herein.
Subscription Term and Renewals. Customer agrees to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted in the “Termination for Cause” Sub-Section. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the applicable BlueInk Service. Each Subscription Term will automatically renew for additional successive periods equal to the initial subscription (e.g. if Customer has an annual plan then the subscription will renew for an additional 12 month term, if Customer has a monthly plan then the subscription will renew for additional month terms) unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non- renewal at least thirty (30) days before the end of the then-current Subscription Term. Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at BlueInk’s then-applicable rates.
Suspension of Service. BlueInk may suspend Customer’s access to the BlueInk Services if: (i) Customer’s account is overdue; or (ii) Customer has exceeded its service allocations / service limits. BlueInk may also suspend Customer’s access to the BlueInk Services or remove Customer Data if it determines that: (a) Customer has breached any portion of these Terms, or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the BlueInk Service. BlueInk will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Sub-Section. However, unless these Terms have been terminated, BlueInk will cooperate with Customer to promptly restore access to the BlueInk Service once we verify that Customer has resolved the condition requiring suspension.
Termination for Cause. Either party may terminate these Terms, including any related Order Form, if the other party: (i) fails to cure any material breach of these Terms (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter).
Effect of Termination. Upon any expiration or termination of these Terms or an Order Form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable BlueInk Service; (b) delete (or, at BlueInk’s request, return) any and all copies of any BlueInk code, documentation, passwords or access codes, and any other BlueInk Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable BlueInk Service will cease and BlueInk may delete the Customer Data at any time after 30 days from the date of termination unless otherwise prohibited by law. If BlueInk terminates these Terms for cause as provided in the “Termination for Cause” Sub-Section, any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where these Terms specifies an exclusive remedy, all remedies under these Terms, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
Survival. The following Sections survive any expiration or termination of these Terms: Account Registration and Use; General Restrictions; Beta Releases and Free Access Subscriptions; Ownership and Feedback; Payment Terms; Term and Termination; Confidential Information; Warranties and Disclaimers; Indemnification Obligations; Limitations of Liability; Third-Party Products and Integrations; Mandatory Arbitration & Waiver of Class Actions. General.
Confidential Information “Confidential Information” means (a) for BlueInk, the BlueInk Services and Documentation; (b) for Customer, Customer Data; (c) any other information of a party that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure (and, in the case of oral disclosures, summarized in writing within thirty (30) days of the initial disclosure and delivered to the recipient), or that due to the nature of the information the recipient would clearly understand it to be confidential information of the disclosing party; and (d) the specific terms and conditions of these Terms, and any amendment and attachment thereof, between the parties.
Confidentiality Obligation. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by these Terms; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under these Terms. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for BlueInk, includes the subcontractors referenced herein) provided that the party remains responsible for any recipient’s compliance with the terms of this Section 10 and that these recipients are bound to confidentiality obligations no less protective than these Terms.
Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section 10, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
Warranties and Disclaimers
BLUEINK AND ITS AFFILIATES ARE NOT A LAW FIRM OR A SUBSTITUTE FOR AN ATTORNEY OR LAW FIRM. WE CANNOT PROVIDE ANY LEGAL ADVICE, EXPLANATION, OPINION OR RECOMMENDATION ABOUT POSSIBLE LEGAL RIGHTS, CONSEQUENCES OR REMEDIES. IT IS THE OBLIGATION OF ANY INDIVIDUAL OR ENTITY USING BLUEINK SERVICES TO INDEPENDENTLY AND THROUGHLY READ, REVIEW AND UNDERSTAND THE DOCUMENTS UPLOADED TO THE BLUEINK PLATFORM PRIOR TO EXECUTING THAT DOCUMENT UTILIZING BLUEINK SERVICES.
ALL BLUEINK SERVICES, DOCUMENTATION, AND SITES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER BLUEINK NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. BLUEINK MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT BLUEINK SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT BLUEINK SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. BLUEINK DOES NOT GUARANTEE THAT SECURITY
MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. BLUEINK WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, CUSTOMER DATA, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-BLUEINK SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, OR THE USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THESE TERMS. THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER AND SITE VISITORS MAY HAVE OTHER STATUTORY RIGHTS, HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
Customer agrees to defend, indemnify, and hold BlueInk, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to, as applicable: (a) Customer’s access to and use of the Site; (b) violation of these Terms by Customer or its Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by Customer; (d) the nature and content of all Customer Data processed by the BlueInk; or (e) any products or services purchased or obtained by Customer.
BlueInk retains the exclusive right to settle, compromise and pay, without Customer’s prior consent, any and all claims or causes of action which are brought against us. BlueInk reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify BlueInk and Customer agrees to cooperate with our defense of these claims. Customer agrees not to settle any matter in which we are named as a defendant and/or for which Customer has indemnity obligations without our prior written consent. BlueInk will use reasonable efforts to notify Customer of any such claim, action or proceeding upon becoming aware of it.
Limitations of Liability
Disclaimer of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BLUEINK OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.
Cap on Damages. BLUEINK’S AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CUSTOMER TO BLUEINK FOR THE APPLICABLE BLUEINK SERVICE OR RELATED SERVICES IN THE SIX (6) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, BLUEINK’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US).
Exceptions. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THESE TERMS, THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS, ANY BLUEINK SERVICE OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Third Party Products and Content
BlueInk may provide, or third parties may provide, links to other third-party websites, services, or resources that are beyond our control. BlueInk is not responsible for these third-party products or content. BlueInk makes no representations or warranties as to the quality, suitability, functionality, or legality of any third-party products or third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such. Customer agrees that BlueInk is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third- party products or third-party content.
Mandatory Arbitration and Waiver of Class Actions
If you are a U.S. resident, you also agree to the following mandatory arbitration provisions:
Agreement to Arbitrate. You and BlueInk agree to resolve any claims relating to these Terms or from the Services through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to Agreement to Arbitrate below. This includes disputes arising out of or relating to interpretation or application of this “Mandatory Arbitration” Section, including its enforceability, revocability, or validity.
Arbitration Procedures and Fees. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in Phoenix (AZ), United States or any other location we agree to. The AAA rules will govern payment of all arbitration fees.
Exceptions to Agreement to Arbitrate. Either you or BlueInk may assert claims, if they qualify, in small claims court in Phoenix (AZ) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona to resolve your claim.
Waiver of Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed. If this specific paragraph is held unenforceable, then the entirety of this “Mandatory Arbitration” Section will be deemed void.
Assignment. These Terms will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign these Terms without the advance written consent of the other party, except that BlueInk may assign these Terms without consent to an Affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign these Terms except as expressly authorized under this “Assignment” Sub-Section will be void.
Notices. Any notice or communication under these Terms must be in writing. Customer must send any notices under these Terms (including breach notices) to BlueInk, in English, at the following address, [email protected], and include “Attention: Legal Department” in the subject line. BlueInk may send notices to the email addresses on Customer’s account or, at BlueInk’s option, to Customer’s last-known postal address. BlueInk may also provide operational notices regarding the BlueInk Service or other business-related notices through conspicuous posting of the notice on BlueInk’s website or the BlueInk Service. Each party consents to receiving electronic notices. BlueInk is not responsible for any automatic filtering Customer or its network provider may apply to emails.
Publicity. Unless otherwise specified in the applicable Order Form, BlueInk may use Customer’s name, logo, and marks to identify Customer as a BlueInk customer on BlueInk’s website and other marketing materials.
Subcontractors. BlueInk may use subcontractors and permit them to exercise the rights granted to BlueInk in order to provide the BlueInk Service and related services. These subcontractors may include, for example, BlueInk’s hosted service and email providers. However, subject to all terms and conditions of these Terms, BlueInk will remain responsible for: (i) compliance of its subcontractors with the terms of these Terms; and (ii) the overall performance of the BlueInk Services if and as required under these Terms.
Subpoenas. Nothing in these Terms prevents BlueInk from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but BlueInk will use good faith efforts to notify Customer where permitted to do so.
Independent Contractors. The parties to these Terms are independent contractors, and these Terms do not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. Non-parties do not benefit from and cannot enforce these terms. There are no third-party beneficiaries to these Terms. Customer must not represent to anyone that it is an agent of BlueInk or is otherwise authorized to bind or commit BlueInk in any way without BlueInk’s prior written authorization.
Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under these Terms (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
Export Control. Customer acknowledges that the BlueInk Services, documentation, website, and all related products, information, technology, and software are subject to export control laws and regulations of the United States (including, but not limited to, the US Export Administration Act, sanction regulations from the U.S. Department of Treasury Office of Foreign Assets Control [“OFAC”]), and of other jurisdictions. Customer is responsible for obtaining any required export or import authorizations for use of the BlueInk Services. Customer represents and warrants that it, its Affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer must not access or use the BlueInk Service in violation of any U.S. export embargo, prohibition or restriction.
Severability. If any provision of these Terms is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that these Terms may otherwise remain in effect.
No Third-Party Rights. Nothing in these Terms confers on any third party the right to enforce any provision of these Terms. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form(s) as the Customer, and not any Customer Affiliates.
Entire Agreement. These Terms represents the parties’ complete and exclusive understanding relating to the subject matter of these Terms. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the BlueInk Service or any other subject matter covered by these Terms. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.
Governing Law & Venue. These terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Arizona, U.S.A., without reference to its choice of law rules to the contrary. The parties agree to submit to the exclusive jurisdiction of, and venue in the federal or state court of competent jurisdiction located in Phoenix, Arizona, U.S.A.
Language and Translations. BlueInk may provide translations of these Terms or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.
How to Contact Us. If you have any questions about these Terms, please contact us at [email protected].