Blumira Reseller Terms of Service

BLUMIRA, INC.

TERMS OF SERVICE

1. Term.

1.1. The initial term of this Agreement shall commence on the Effective Date unless otherwise specified on the Order Form or initial invoice and last for the period set forth in the Order Form (the “Initial Term”), unless renewed or terminated in accordance with this Agreement.  The term shall continue for successive periods of equal length to the Initial Term (each a “Renewal Term”) unless either party provides the other party with written notice of its intent to not renew no later than thirty (30) days prior to the expiration of the then-current term.  

1.2. Prior to the expiration of the then-current term, Customer shall be invoiced by Blumira or its authorized reseller (as determined by an applicable order) for the fee required to access the Services (the “Subscription Fee”) for the upcoming term.  Payment of such invoice shall entitle Customer to ongoing access to the Services. If Customer purchases access to the Services through a Blumira-approved reseller (a “Reseller”), such Reseller shall be a third-party beneficiary for purposes of enforcing Customer’s obligation to pay fees under this Agreement.

2. Fees.

2.1. License Fees.  Customer will pay Blumira or its authorized reseller (as determined by an applicable order) a Subscription Fee for the right to access and use the Blumira services identified in the Order Form (the “Services”).  Under this Agreement, a “User” is defined as anyone that Customer would allow to have access to the Services, whether the Services is used or not.  Subscription Fees, setup fees, support fees, and any other service fees specified in the relevant Order Form.  The Subscription Fee does not include fees for additional support, training, incident response, consultation, or other Blumira services.  

2.2. Timing of Payment.  The initial term of the license to use the Services begins on the date that Blumira receives payment in full of the first Subscription Fee.  Blumira shall invoice Customer for additional fees as set forth on the Order Form.  Payment is due thirty (30) days after the date of the invoice or sooner if the Customer would prefer the license to begin earlier.

2.3. Non-Payment; Additional Fees.  Blumira may suspend Customer’s access to the Services due to nonpayment of overdue amounts.  Customer agrees to pay a late fee of one and a half percent (1.5%) per month on all amounts that are overdue, and all attorneys’ fees and expenses relating to Blumira’s efforts to secure payments that are overdue.  Customer is responsible for payment of any sales and/or use taxes arising out of its use of the Services.

2.4. Fees Generally. .  Fees are subject to change. Changes during the term of each year of the Agreement that are unrelated to the number of Users with access to the Services will be effective at the commencement of the following renewal period.  All fees stated are in U.S. dollars.  

3. Subscription. Subject to and conditioned on Customer’s payment of Fees and full compliance with all other terms and conditions of this Agreement, for the term of this Agreement Blumira authorizes Customer and Users to use the Services. The license granted by this Agreement is nonexclusive, nontransferable, non-sublicensable and personal to Customer.  Blumira reserves all rights, including intellectual property rights, in the Services and related materials (such as documentation, guides, training materials, and instructional materials).  Customer shall use commercially reasonable security measures to prevent unauthorized access to and use of the Services.  Except as provided on the Order Form, Customer shall be responsible for all third party applications and all third party costs associated with each User’s access to and use of the Services.  

4. System Administrator; Security.  Customer will cause a system administrator assigned by Customer to manage access to the Services to grant authorization to authorized Users that may access the Services.  Customer represents and warrants that its system administrator and those directly under the system administrator’s control and direction will be the only persons with the ability to authorize new Users.  The designated system administrator will promptly notify Blumira of any suspected breach of security or unauthorized use of the Services.  Users will have the right to upload individually-identifiable data to the Services (“Data”) and Customer consents to Blumira’s use, storage and dissemination of this Data in connection with this Agreement. Customer shall not assign or transfer its rights to the Services. Customer and its system administrator shall maintain the confidentiality of all passwords, account numbers or information related to the Services or Customer’s management of the Services to authorized persons.  Blumira shall have, and Customer hereby grants to Blumira, a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, non-exclusive license to use or incorporate into the Services or the Services any suggestions, customizations, enhancement requests, recommendations or other feedback provided by Customer or Users, relating to use or operation of the Services.

5. Additional Services. In connection with Services implementation and from time to time during the term of this Agreement, Blumira, at its discretion upon Customer’s request, provide additional configuration and/or development, maintenance, training, marketing and consulting Services related to the Services.  All Additional Services shall be set forth in an amendment to an Order Form. This amendment shall identify the specific deliverables, specifications or a narrative description of the features and functions for such deliverables, the milestones to be achieved in connection with the deliverables, the acceptance and performance criteria for the deliverables, the amount and timing of payment of fees, the timing of delivery, and any other terms important to the parties.

6. Customer Content; Representations and Warranties.

6.1. Customer represents and warrants that all content, data and other materials (“Customer Content”) it discloses or delivers to Blumira for use in connection with this Agreement are the property of Customer, or that Customer has the rights to disclose or deliver the Customer Content and other materials to Blumira, and that the Customer Content and other materials do not infringe any copyright, trademark, trade secret, patent or other right of any third party.  Customer hereby represents and warrants that it has obtained the necessary consents from data or content subjects, including all consents required by applicable privacy laws, before any Customer Content related to third parties is provided to Blumira.

6.2. Customer hereby indemnifies, holds harmless, and agrees to defend Blumira against all damages, losses, judgments, penalties, expenses, costs, and fees (including reasonable attorneys’ fees) incurred by, or awarded or assessed against Blumira in connection with any third party (including domestic or foreign governments or agencies) assertion inconsistent with the promises, statements, representations, and warranties. 

7. Use of Services.  

7.1. Blumira may use the Data and information Blumira collects from Customers’ and Users’ use of the Services as follows: to monitor the security and integrity of the Services, to continue development of the Services, to evaluate the security and integrity of Services Data or as otherwise required by law.  For information that is not identifiable to an individual or entity, which is most information captured by the Services, Blumira may use such anonymous information to improve the Services or Blumira’s other products and services.

7.2. Blumira shall: (i) use commercially reasonable efforts to make the Services available, except for: (a) planned downtime (of which Blumira will use commercially reasonable efforts to notify Customer of scheduled downtime of the Services in advance), which Blumira shall schedule to the extent practicable during the weekend hours), or (b) any unavailability caused by circumstances beyond Blumira reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, and (ii) provide the Services only in accordance with applicable laws. Nothing in this Agreement shall be construed to directly or indirectly create any liability whatsoever for Blumira, including refund of fees for the Services, related to (1) operating errors made by Users, whether or not related to any training deficiencies, (2) failures of the Customer’s or Users’ technology, (3) failures, outages or inaccessibility of Customer’s internal networking infrastructures, (4) failures, outages or inaccessibility of Customer’s Internet access provider or intermediate transit provider to the data center managed or contracted for by Blumira, (5) failures caused by circumstances and events beyond Blumira’s reasonable control, (6) failures caused by Customer's use of the Services in connection with third party applications.

7.3. Customer shall not (a) make the Services available to anyone other than Customer or its Users, (b) authorize any person or business entity to be a User unless such person is an Authorized Individual, (c) authorize any person or business entity to be a User if such person of business entity is known to Customer to be a competitor of Blumira, or (d) operate as a service bureau or intermediate provider of the Services to any third party other than Users without the advanced written consent of Blumira.  An “Authorized Individual” means an employee, contractor, or permitted visitor of the Customer so long as such person is conducting business directly with Customer while they are engaged in use of the Services.

7.4. Blumira may deploy updates, releases, fixes or modifications (“Updates”) to the Services from time to time without a scheduled outage.  Blumira may deploy Updates upon Blumira’s determination, in its sole discretion, that such Updates are ready for commercial release and will improve the quality of the Services generally.

8. Intellectual Property Rights. 

8.1. Blumira retains all intellectual property rights in the Services, including copyrights, trade secrets, trademarks, patents, and “know-how.”  Customer is granted a limited license to access and use the Services and is not granted any right to download the Services, unless such download is to enable use by a User consistent with Blumira’s Services use policies, or create derivative works.

8.2. Customer retains the rights applicable to Customer Content and to User Data generated through Customer’s and Users’ use of the Services. Customer grants Blumira permission to use the Customer Content and User Data for any lawful business purposes, provided that the Data is used either in the aggregate or in a manner that does not otherwise publicly identify Customer or its Customers, or any nonpublic information.  This license is irrevocable, royalty-free, worldwide, and transferable.

8.3. Blumira may, during the term of this Agreement, reproduce and use the trademarks, trade names, and logos (collectively, “Marks”) and Customer data solely in connection with Blumira’s operation and distribution of the Services. Any use of the Customer’s Marks in Blumira’s marketing materials is subject to Customer’s prior written approval.  Blumira may also access aggregate data for comparative and normative processes.

9. Limited Warranties; Exclusion of Certain Warranties.

9.1. Limited Warranty.  During the term of the Agreement, Blumira warrants that the Services will materially perform in accordance with the specifications provided to Customer and Services-related documentation (the “System Requirements”).  Blumira does not warrant that the functions contained in the Services will meet Customer’s specific needs, professional requirements (unless expressly stated in the documentation), be error-free, or operate without interruption.  The Services is hosted on a computer system that will be subject to maintenance, repair, and upgrading; the Services will be temporarily inaccessible during such times.

9.2. Use by Trained Individuals.  The Services is designed for use by trained Users.  The Services uses proprietary algorithms of Blumira but it is neither an expert system nor a substitute for professional judgment and management strategy. Customer is solely responsible for its use of the Services, the result of such use and any resulting internal changes to policy, any disciplinary activities that result from Customer’s review of the Services outputs, analysis and interpretation of output, and compliance with laws applicable to Customer’s services.  

9.3. Waiver of Other Warranties.  THESE LIMITED WARRANTIES ARE IN LIEU OF, AND CUSTOMER HEREBY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

10. Sole and Exclusive Remedies.

10.1. Correction of Services defects.  Blumira will use reasonable efforts to correct any material nonconformance.  All defect-related communications shall be sent to Blumira’s point of contact. 

10.2. Acceptance/Rejection.  If the Services fails to materially conform to the System Requirements and Blumira is unable to remedy errors within a reasonable period of time, Customer may either (a) accept the Services AS IS, or (b) reject the Services by notifying Blumira in writing that Customer is terminating this Agreement.  

10.3. Sole and Exclusive Remedies.  The remedies in this Section are the sole and exclusive remedies provided to Customer relating to the Services.

11. Limitations of Liability for Damages.  REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL BLUMIRA BE LIABLE TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, INCLUDING USE OF THE SERVICES, FOR: (a) ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF BLUMIRA IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES; (b) LOST PROFITS, LOST REVENUE, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES, OR LOSS OF DATA; AND/OR (c) DIRECT DAMAGES IN AN AMOUNT IN EXCESS OF THE FEES PAID BY CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF DAMAGE.

12. Termination of License and Agreement.

12.1. For Breach.  Either party may terminate this Agreement in the event of the breach of a material obligation that is not cured within thirty (30) days after receipt of written notice specifying the nature of the breach in reasonable detail. 

12.2. Obligations upon Termination.  Upon expiration, termination, or non-renewal of this Agreement, Customer shall pay all amounts then due to Blumira and immediately cease all use of the Services.  

12.3. Survival.  All Sections of this Agreement related to ownership, privacy, indemnification, confidentiality, limitations of liability, and any other subject that would, by its nature, be deemed to survive termination of this Agreement, will survive the termination or expiration of this Agreement.  

13. Publicity. Blumira may use Customer’s name, trademarks or service marks or refer to the Customer in any promotional or marketing materials but only after receipt of Customer’s prior written permission.

14. Miscellaneous.  In order to ensure consistency in interpretation, this Agreement shall be governed by the laws of the State of Michigan and the federal laws of the United States of America.  The parties waive the right to trial by jury.  Customer agrees not to access the Services or export any Services-related information outside of North America.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be deemed modified so as to make it valid in a manner consistent with the intent of the parties expressed in that section.  Customer may not assign any rights or delegate duties under this Agreement without the prior, express, written consent of Blumira, which may be granted or withheld at Blumira’s sole discretion.  Any attempted assignment without such consent shall be void.  This Agreement includes the Order Form and the documents, exhibits and appendices attached thereto and constitutes the entire understanding of the parties with respect to the Services.  It replaces, supersedes and merges all prior written and oral communications, representations, promises or understandings.  This Agreement may be amended or supplemented only by a writing signed on behalf of both parties.  Any waiver of a provision of this Agreement or of a party’s right or remedy under this Agreement must be in writing and signed by the party to be effective. Failure or delay by a party to enforce its rights or remedies under this Agreement at any time will not be deemed a waiver and will not affect the validity of this Agreement or prejudice such party’s right to take subsequent actions.  It shall not be a material breach of this Agreement, and neither party shall be liable to the other, if prevented from performing its duties or responsibilities under this Agreement by reason of any fire or other casualty, acts of God, earthquake, floods, explosions, interrupted power supply, sabotage, war, riots, acts of terrorism; inability to procure or a general shortage of labor, equipment, facilities, materials or supplies in the open market; strikes, court orders, laws, regulations, or orders of government or military authorities; or any other cause not within the control of such party whose performance is delayed.  All notices shall be in writing and shall be addressed to the parties at their respective addresses or to such other address as a party may designate.  Notices are effective upon receipt.  Notice may be given by email, hand delivery, certified mail (return receipt requested), or overnight courier.

Version Date: June 28th, 2021