This Blue Mountain Quality Resources, LLC (“Blue Mountain”) Master Subscription and Services Agreement together with any applicable Order Form, Quote, services description and other terms and attachments referencing this Master Subscription and Services Agreement (collectively, the “Agreement”) forms a binding agreement between YOU (“Customer”) and Blue Mountain. The purpose of this Agreement is to provide a framework governing Customer’s access and use of Blue Mountain’s products and services (the “System”). Blue Mountain and Customer may each be referred to as a “Party” and together, the “Parties.” Customer’s execution of an Order Form, issuance of a purchase order, or access to or use of the System constitutes Customer’s acceptance of and agreement to be bound by this Agreement. In the event of a conflict, this Master Subscription and Services Agreement will control unless an applicable Order Form or Quote expressly states otherwise. Any terms contained in a Customer purchase order or other Customer-provided document will have no force or effect.
Any capitalized term which is defined in this Agreement shall have the same meaning when used in any Order Form, Quote, services description and other terms and attachments, unless the language or context requires otherwise. As used in this Agreement:
“Commencement Date” is the date of commencement of the implementation and corresponds to the date of the kickoff meeting or no later than four (4) weeks after the Effective Date, whichever is sooner, unless a different date is specifically designated in the Order Form.
“Concurrent User” means a User who is accessing the System at the same time as other User(s). The number of Concurrent Users who may access the System at the same time may not exceed the number of Concurrent User licenses Customer has purchased from Blue Mountain as specified in the Order Form.
“Customer” is the entity identified on the Order Form.
“Customer Data” means any of Customer’s information, documents, or electronic files that are provided to Blue Mountain for uploading or storage in the System, either as part of the initial migration of data into the System or as part of the normal operation of the System subsequent to the initial startup. Customer Data may include personal information or personally identifiable information as defined by the European General Data Protection Regulations (“GDPR”) or other governmental regulatory entities. In such case, Customer is the Data Owner and represents that all required consents have been obtained to transfer the Customer Data to Blue Mountain, and Blue Mountain is the Data Processor.
“Documentation” means the documentation and specifications regarding the System provided by Blue Mountain.
“Effective Date” means the date specified as the Effective Date in the applicable Order Form, or, if no such date is specified, the date of last signature on the Order Form.
“Error” means any reproducible material failure of the System to function in accordance with its Documentation.
“Implementation Window” is the period of time beginning at the Commencement Date and ending sixteen (16) weeks after the Commencement Date on installations without the purchased data migration package and twenty-four (24) weeks after the Commencement Date with the purchase of either the basic data import package or standard data import package, unless a different length of time is specified in the Order Form.
“Maintenance Window” means the period beginning at the applicable Start Time during which Blue Mountain may perform Updates, infrastructure upgrades, operating system updates, database maintenance, security patching, networking changes, or other maintenance activities affecting the Production Environment. Except for emergency maintenance or the recurring Maintenance Window described below, Blue Mountain will provide Customer at least seventy-two (72) hours’ advance notice of the Start Time of a Maintenance Window. Blue Mountain reserves a recurring Maintenance Window on the third Sunday of each month from 8:00 AM to 12:00 PM Eastern Time, for which no additional notice is required.
“Named User” means a named individual to whom Customer has granted access to use the System on Customer’s behalf, regardless of whether or not the User actually accesses the System. Named Users have full access to the System provided they have been assigned a user login account.
“Non-Production Environment” means the portion of the System used to host a non-primary instance of the System and Customer Data. A Non-Production Environment may only be used for testing, training, development, or validation activities.
“Order Form” is the form executed by the Customer listing the specific System to which the Customer subscribes, the Term of the subscription, the subscription fees, and payment terms.
“Production Environment” means the portion of the System used to host the primary instance of the System and Customer Data. The Production Environment is often referred to as the live environment.
“Professional Services” means implementation, configuration, training, data migration, consulting, report development, validation, and other services provided by Blue Mountain outside of standard Support.
“Requester” means a named individual to whom Customer has granted limited access to use the System on Customer’s behalf. All Requesters must be registered within the System. The number of Requesters who may access the System is limited as set forth in the Order Form.
“System Administrator” means the person(s) that Customer designate(s) to purchase on behalf of Customer usage of the System, authorize Users and Requesters under the Agreement, create accounts for additional Users and Requesters, and otherwise administer Customer’s use of the System.
“Start Time” means both date and time.
“Support” means the ongoing services provided by Blue Mountain as part of the subscription to support Customer’s use of the System as described in Section 4.
“System” means the hosted software platform and service including any Updates. The System is specified in the Order Form.
“Term” means the Initial Term together with any Renewal Terms.
“Update” means any patch, bug fix, or hot fix applied to the System. Update also includes any platform updates (ex. Operating System, IIS, SQL Server, etc.), or a change to the BMRAM code base meant to improve performance and/or functionality.
“User” may be either a Named User or a Concurrent User.
2.1. Use Rights for Production Environment. During the applicable subscription Term, Blue Mountain grants to Customer a nonexclusive, royalty-free, worldwide, non-transferable, non-sublicensable right to permit Customer’s Users and Requesters to access and use the Production Environment of the System defined in the Order Form for Customer’s business purposes. The use right in the preceding sentence is limited to use: (i) by the number of Named Users, Concurrent Users and Requesters for which Customer has paid and for which user log on accounts have been assigned. Customer may have multiple Named Users, Concurrent Users, and Requesters, but only the authorized number of Named Users, Concurrent Users or Requesters may access the System concurrently at any time. Concurrent User licenses may only be used by Users associated with the applicable licensed site(s) identified in the Order Form. Customer shall promptly notify Blue Mountain of the addition of any new site, facility, or location requiring access to the System. Blue Mountain reserves the right to adjust applicable fees, license counts, and subscription fees in connection with any such additional site or expanded use of the System. The use rights are non-transferable, except in the event of a voluntary transfer of substantially all assets by Customer to a transferee which executes Blue Mountain’s form of agreement agreeing to be bound by all of the terms and conditions of this Agreement. All rights in and to the System not expressly granted herein are reserved to Blue Mountain.
2.2. Use Rights for Non-Production Environment. If no Non-Production Environment is specified in the Order Form, Customer does not have access to any Non-Production Environment of the System. If a Non-Production Environment is specified on the Order Form, Blue Mountain grants to Customer a nonexclusive, royalty-free, worldwide, non-transferable, non-sublicensable right to permit Customer’s Named Users, Concurrent Users, and Requesters to access and use the Non-Production Environment of the System during the Term specified on the Order Form for Customer’s business purposes. The use right in the preceding sentence is limited to use by the number of Named Users or Concurrent Users for which Customer has paid and for which appropriate licenses have been assigned. Customer acknowledges that the Non-Production Environment is not to be used for true data management and/or reporting purposes. Rather, the Non-Production Environment is to be used for testing configurations of the System before moving any configuration(s) to the Production Environment. The use rights are non-transferable, except in the event of a voluntary transfer of substantially all assets by Customer to a transferee which executes Blue Mountain’s form of agreement agreeing to be bound by all of the terms and conditions of this Agreement. All rights in and to the System not expressly granted herein are reserved to Blue Mountain. Customer acknowledges that the database utilized by the Non-Production Environment may periodically be replaced by the database utilized in the Production Environment, but the database being utilized by the Non-Production Environment is not the true representation of the Customer Data.
2.3. Use Restrictions. Customer shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile the System; (ii) modify, create derivative works based upon, or translate the System; (iii) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the System in any form to any other party, (iv) use any automated tool, bot, or script to interact with the System’s graphical user interface, unless expressly authorized in writing by Blue Mountain; nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder. Customer acknowledges and agrees that Blue Mountain shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the System and any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any of Customer’s Users relating to the System. Customer agrees that Customer does not acquire any license to Blue Mountain’s software programs in excess of the scope and/or duration of the Term set forth in the Order Form. Upon the end of the subscription Term without renewal, Customer’s right to access or use the System shall terminate. Customer further agrees that Customer will not use or access the System in order to build or support, and/or assist any third party in building or supporting, products or services competitive with Blue Mountain’s products or services.
2.4. System Administrator. User Access. Customer shall designate one or more System Administrators. System Administrators shall be responsible for managing User access and Requester access, including adding and subtracting Users and Requesters. Customer’s System Administrator shall be responsible to prevent the number of Users from exceeding the authorized number of Users as set forth in the Order Form. Customer shall keep Blue Mountain informed of the identity of each System Administrator through procedures established by Blue Mountain for this purpose. The System Administrator shall ensure that multiple Users do not share a password or username. Customer acknowledges and agrees that it is prohibited from sharing passwords and/or usernames with unauthorized users. Customer shall not permit any automated process or non-human entity to access the System using User or Requester credentials, unless expressly authorized in writing by Blue Mountain.
2.5. Security. Customer is solely responsible for maintaining the confidentiality and security of all usernames and passwords granted to it, for the security of its information systems used to access the System, and for its Users’ compliance with the terms of this Agreement. Blue Mountain will act as though any electronic communications it receives under Customer’s usernames have been sent by Customer. Customer will immediately notify Blue Mountain if it becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords or usernames. Blue Mountain has the right at any time to terminate or suspend access to any User or to Customer if Blue Mountain believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the System or Blue Mountain’s network.
2.6. Access. Blue Mountain reserves the right to provide the System from locations, and through the use of subcontractors, worldwide. Blue Mountain further reserves the right to disable Customer’s access to the System if, in Blue Mountain’s sole discretion, such action is necessary in order to protect the integrity and operation of the System or any third party’s rights to access and use the System.
2.7. Prohibited Automated Access and Credential Use. Customer shall access and use the System solely through: (a) authorized human Users acting within the scope of their assigned permissions; and (b) Blue Mountain-provided, documented APIs or other expressly authorized integration mechanisms. Customer shall not access or use the System through any automated tool, script, or process that interacts with the System through its graphical user interface (including, without limitation, UI-level robotic process automation (RPA) bots, screen scrapers, headless browsers, or other technologies that mimic human activity) unless expressly authorized in writing by Blue Mountain. Customer shall not share, reuse, or embed human user credentials in connection with any automated process. All access credentials must remain assigned to individual, named Users and must not be used by or transferred to any other person, process, or automation tool.
3.1. Blue Mountain Programs. Blue Mountain retains all ownership and intellectual property rights to the System, its services, and any Blue Mountain programs or software made available to Customer in the System. Except as expressly provided in this Agreement, Customer may not copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, including but not limited to, electronic, mechanical, photocopying or recording, the System or any portion thereof.
3.2. Customer Data. Customer owns all right, title and interest in the Customer Data. Customer hereby grants to Blue Mountain, a non-exclusive, non-transferable (unless subject to legal process as set forth in Section 8.4, below), non–sublicensable right and license to use, copy, transmit, modify and display the Customer Data solely for purposes of Customer’s use of the System. Blue Mountain shall access, use, process, and display Customer Data solely as necessary to (i) provide and support the System, (ii) comply with applicable law, and (iii) improve, develop, and enhance the System, provided that any use for improvement or development purposes shall be limited to aggregated and de-identified data that does not identify Customer or any individual. If Customer Data includes personal data subject to applicable data protection laws, the parties shall enter into a mutually agreed data processing addendum governing such processing.
3.3. Aggregated and De-Identified Data. Blue Mountain may collect, use, and analyze aggregated, anonymized, and de-identified data derived from Customer’s use of the System, including system usage data, performance metrics, telemetry, and metadata, and may combine such data with similar data from other customers for purposes of improving the System, developing new features and functionality, benchmarking performance, operating and optimizing the System, and for Blue Mountain’s internal and commercial business purposes. In no event will such data identify Customer or any individual.
3.4. No Sensitive Data; Customer Responsibilities. Customer acknowledges that the System is not intended for use with protected health information under HIPAA, credit card numbers, financial account numbers, or other similarly- sensitive personal information, and that Customer assumes all risk arising from use of any such sensitive information with the System, including the risk of any inadvertent disclosure or unauthorized access thereto. Customer is responsible for ensuring that Customer and Customer’s Users’ use of the System is in compliance with all applicable laws and governmental regulations and Customer acknowledges that Customer assumes all risk arising from any such use that is not compliant with applicable laws and regulations. To the extent any Customer Data includes personal information or personally identifiable information, Customer represents that all required consents to include such information in Customer Data have been obtained, and in relation to Blue Mountain, the Customer is the Data Owner and Blue Mountain is the Data Processor. In providing the System to Customer, Blue Mountain will comply with Blue Mountain’s confidentiality obligations as set forth in this Agreement.
4.1. Support and Services Generally. Blue Mountain provides (i) ongoing Support as part of the subscription, and (ii) Professional Services, which are separate, project-based, or additional services that may be subject to additional fees.
4.2. Updates. Blue Mountain retains the right to make Updates to the Customer’s System. An emergency Update may be applied to the Customer’s System without advanced notification. Blue Mountain shall solely be responsible for determining if an Update is an emergency Update. The Customer shall be notified in advance for non-emergency Updates. For non-emergency Production Environment Updates, Blue Mountain will notify the Customer of the Start Time of the Maintenance Window at least 72 hours in advance of applying the Update. The Customer never has the right to refuse the Update.
4.3. Error Correction. Blue Mountain shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during Blue Mountain’s normal business hours. Customer shall provide such access, information, and support as Blue Mountain may reasonably require in the process of resolving any Error. This paragraph is Customer’s sole and exclusive remedy for Errors.
4.4. Support Exclusions. Blue Mountain is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by: (i) the acts, omissions, negligence or willful misconduct of Customer or Customer’s Users, including any unauthorized modifications of the System or its operating environment; (ii) any failure or defect of Customer’s or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of Blue Mountain’s firewall) ; (iii) Customer’s use of the System other than in accordance with the System’s Documentation or intended purpose; or (iv) a Force Majeure Event.
4.5. Support Fees. Blue Mountain shall provide standard Support as part of the subscription. Any services requested by Customer that fall outside the scope of standard Support, including Professional Services, shall be billed on a fixed fee basis, unless otherwise set forth in an applicable Order Form.
4.6. Implementation and Professional Services and Fees. Blue Mountain may provide implementation, configuration, training, data migration, consulting, and other related services (collectively, “Professional Services”) as described in an applicable Order Form. Initial implementation services are estimated to be completed within the Implementation Window; however, delays caused by Customer, including failure to provide required information, access, resources, or approvals, may extend such timeline without liability to Blue Mountain. Unless expressly stated otherwise in an applicable Order Form, Professional Services are provided on a fixed fee. Any services requested or required beyond the scope of the applicable Order Form, or beyond the Implementation Window, shall be billed on a fixed fee basis.
4.7. Professional Services Terms. Customer shall provide timely access to personnel, systems, and information reasonably required for Blue Mountain to perform Professional Services. Blue Mountain shall not be responsible for delays caused by Customer or third parties. Unless otherwise expressly stated, Professional Services fees do not include travel or out-of-pocket expenses, and Customer shall reimburse Blue Mountain for all reasonable travel and related expenses incurred. Blue Mountain requires advance payment for Professional Services. Blue Mountain retains all right, title, and interest in and to all methodologies, tools, and know-how used or developed in connection with Professional Services.
4.8. Transition. During the Term, Blue Mountain may retire or discontinue support for a platform and transition Customer to a different platform. If Customer has not transitioned to the new platform, Blue Mountain may, at its sole discretion, migrate Customer’s former environment to the updated platform, archive‑only configuration at no additional cost to Customer. If Customer later requires the new platform to support production use, any training, configuration, or migration services necessary to enable such production use shall be provided as Professional Services pursuant to an applicable Order Form.
5.1. Fees. In return for Customer’s access to the System, Support, Professional Services, and other rights provided by Blue Mountain, Customer shall pay to Blue Mountain the subscription fees and other fees in the amount set forth in the Order Form.
5.2. Payment Terms. Blue Mountain shall invoice Customer yearly in advance for all recurring charges in accordance with the Order Form. Additional System and Support add-ons purchased mid-year will be prorated based on the order date. Customer shall pay all Blue Mountain invoices within 30 days of the invoice date. Any invoice not disputed in writing within such 30-day period shall be deemed accurate and accepted. If Customer is delinquent in payment of any portion of an invoice, Blue Mountain may, in addition to any other remedies it may have, including termination, suspend access to the System and/or provision of all services to Customer.
5.3. Taxes. Customer shall pay or shall reimburse Blue Mountain for all sales taxes and other taxes, however characterized by the taxing authority, based upon the subscription fees or other charges under this Agreement or otherwise incurred on account of Customer’s use of the System, except for any taxes based upon Blue Mountain’s net income or gross receipts or for any franchise or excise taxes owed by Blue Mountain. If Customer is a tax-exempt organization, then, upon Blue Mountain’s receipt of proof of such status, Blue Mountain shall not charge Customer for any taxes from which Customer is exempt.
5.4. Yearly Price Revisions. Except as otherwise specified in an Order Form or SOW, the subscription fees for subsequent annual subscription periods during the Term will be revised by a maximum of seven percent (7%) increase over the annual fees charged during the previous annual subscription period.
5.5. Late Fees and Interest. If any invoice remains unpaid beyond the due date specified in the applicable Order Form or invoice, the Customer shall pay a late fee of 1% of the outstanding balance. In addition, the Blue Mountain reserves the right to charge interest on amounts more than 30 days past due at a rate of 1% per month (or the highest rate permitted by applicable law, whichever is lower), calculated daily from the date the payment was due until the date of actual payment in full.
6.1. Marketing Communications and Opt-Out. Blue Mountain may send Customer marketing or promotional communications related to the System and Blue Mountain’s products and services. Customer may opt out of receiving such marketing communications at any time by following the unsubscribe instructions included in the applicable communication or by contacting Blue Mountain using the contact information provided by Blue Mountain. Customer acknowledges that opting out of marketing communications will not affect Blue Mountain’s ability to send Customer transactional or service-related communications, including without limitation communications relating to the provision of the System, support, billing, security, or other administrative matters.
7.1. Term. This Agreement commences on the Effective Date and continues for the duration of all Order Forms. Each Order Form will remain in effect for the initial term specified in the applicable Order Form (the “Initial Term”) and, unless otherwise specified in the applicable Order Form, will automatically renew for successive renewal terms of one (1) year each (each, a “Renewal Term,” and together with the Initial Term, the “Term”) at Blue Mountain’s renewal pricing subject to a minimum of seven percent (7%) increase over the fees payable during the immediately preceding Term unless either party provides written notice of non-renewal at least sixty (60) days prior to expiration of the then-current Term. If Customer selects a multi-year pricing plan, the Initial Term shall be the multi-year subscription period specified in the applicable Order Form.
7.2. Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party: (i) if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within ten (10) days of written notice by the other party specifying the amounts owed; (ii) immediately upon any breach of any confidentiality obligations owed to such party by the other party; (iii) if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the non–breaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within thirty (30) days, has failed to begin and continue to work diligently and in good faith to cure such breach); or (iv) upon the institution of bankruptcy or any insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement.
7.3. Obligations Upon Termination. Upon termination of this Agreement: (i) provided that Customer has paid all amounts owed to Blue Mountain hereunder, Blue Mountain shall, upon Customer’s request, and for a period of up to sixty (60) days following termination of this Agreement and the applicable subscription Term, make available a backup copy of the Customer database for electronic download. The form and format of such data shall be in accordance with the Documentation on the Blue Mountain website. (ii) Blue Mountain shall immediately terminate Customer’s ability to upload any Customer Data into the System; and (iii) except in the event of Customer’s termination pursuant to Section 7.2, Customer shall immediately pay Blue Mountain any amounts payable to Blue Mountain, including any deferred payments or payments originally to be made over time. Customer shall immediately pay all amounts accrued, due, and payable through the end of the subscription Term.
8.1. Definition. “Confidential Information” means any information (whether tangible or intangible, printed, electronic, or otherwise) and items embodying information (including graphs, photographs, samples, working models, and prototypes) at any time furnished by one party (“Discloser”) to the other party (“Recipient”) or to which Recipient is exposed during the Term of this Agreement, including, without limitation, (a) information concerning Discloser’s business and business plans, (b) financial information concerning Discloser and its affiliates, (c) information concerning Discloser’s pending patents or other trade secrets, (d) Discloser’s sketches, drawings, designs and specifications, (e) Discloser’s concepts, ideas, inventions, know-how, processes, apparatus, equipment, algorithms and formulas, and (f) information from third parties that Discloser is obligated to treat as confidential. Notwithstanding the above, the term “Confidential Information” does not include any information that is either: readily discernible from publicly available products or literature; or approved for disclosure by prior written permission of an executive officer of the Discloser.
8.2. Restrictions on Use. Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient agrees that it will not (a) use Discloser’s Confidential Information for any purpose other than the purpose for which Discloser disclosed the information; or (b) disclose or reveal Discloser’s Confidential Information to any person or entity other than its employees, directors, officers and consultants who have a need to know such information to further the purpose of this Agreement and who are subject to legally binding obligations of confidentiality and non-use no less restrictive than those contained in this Agreement.
8.3. Exceptions. The obligations in this Section shall not apply to Confidential Information that: (a) before the time of its Disclosure, was already in the lawful possession of the Recipient; (b) at the time of its Disclosure to Recipient, was already available to the general public, or after Disclosure to Recipient by Discloser, becomes available to the general public through no wrongful act of the Recipient; or (c) Recipient demonstrates to have been lawfully and independently developed by Recipient without the use of or reliance upon any Confidential Information of the Discloser and without any breach of this Agreement.
8.4. Required Disclosures. If Recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, then Recipient shall notify Discloser of the requirement promptly in writing (if legally permitted) so that Discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Discloser waives in writing compliance with the terms hereof, then Recipient shall furnish only that portion of the information which Recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.
8.5. Return of Information. Except as set forth otherwise in the specific provisions concerning Customer Data, Recipient agrees to return to Discloser all copies of Confidential Information promptly upon Discloser’s request at any time. If return is impossible as to any portion of the Confidential Information, then Recipient shall certify to Discloser promptly that all such Confidential Information of Discloser, including all copies thereof, has been totally and permanently destroyed.
8.6. Ownership. Each party shall retain ownership of all rights, including all intellectual property rights, in its own Confidential Information. Nothing in this Agreement shall be deemed, by implication or otherwise, to convey to Recipient any right under any patent, patent application, invention, or other proprietary right owned by Discloser or anyone associated with Discloser.
8.7. Survival. In the event Customer enters into a separate nondisclosure agreement with Blue Mountain, then such agreement shall be incorporated into this Agreement by reference herein, and if any terms and conditions of such agreement are in conflict with the terms and conditions herein, then such agreement shall supersede the confidentiality terms and conditions in this section. If a separate nondisclosure does not exist, the confidentiality obligations set forth herein shall survive termination of this Agreement for a period of three (3) years.
9.1. Indemnification by Blue Mountain. Blue Mountain shall defend, indemnify and hold harmless Customer from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third- party claim, suit or proceeding that arises from Customer and/or the Customer’s Users’ use of the System in accordance with this Agreement that, to Blue Mountain’s knowledge, infringes or misappropriates any patent, trade secret, trademark, or copyright rights of any third parties. Blue Mountain will have no indemnity obligation to Customer if the alleged infringement or misappropriation is based on (i) any combination, operation, or use of the System with products, services, information, materials, technologies, business methods or processes not furnished by Blue Mountain to the extent the infringement or misappropriation is based on such combination, operations or use; (ii) any modification (other than by Blue Mountain) to the System to the extent the infringement or misappropriation is based on such modification; or (iii) the Customer’s failure to promptly begin to use any Update to the System that is provided by Blue Mountain that would have eliminated the actual or alleged infringement or misappropriation.
9.2. Indemnification by Customer. Customer shall defend, indemnify and hold harmless Blue Mountain from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third-party claim, suit or proceeding that arises from the Customer and/or the Customer’s Users’ use of the System (other than to the extent indemnified by Blue Mountain for infringement as provided above).
9.3. Indemnification Process. The indemnified party shall promptly notify the indemnifying party in writing of any third-party claim, stating the nature and basis of the third-party claim, to the extent known. The indemnifying party shall have sole control over the defense and settlement of any third-party claim, provided that, within fifteen (15) days after receipt of the above- described notice, the indemnifying party notifies the indemnified party of its election to so assume full control. The foregoing notwithstanding, the indemnified party shall be entitled to participate in the defense of such third party claim and to employ counsel at its own expense to assist in the handling of such claim, except that the indemnified party’s legal expenses in exercising this right shall be deemed legal expenses subject to indemnification hereunder to the extent that (x) the indemnifying party fails or refuses to assume control over the defense of the third party claim within the time period set forth above; (y) the indemnified party deems it reasonably necessary to file an answer or take similar action to prevent the entry of a default judgment, temporary restraining order, or preliminary injunction against it; or (z) representation of both parties by the same counsel would, in the opinion of that counsel, constitute a conflict of interest. The indemnifying party shall not settle any such third-party claim without the written consent of the indemnified party, except for a complete settlement requiring only the payment of money damages to be paid by the indemnifying party.
9.4. Sole Remedy. Indemnification pursuant to this Section is the parties’ sole remedy for any third-party claim against the other party.
10.1. Service Level Commitment. Blue Mountain will use commercially reasonable efforts to make the System accessible to Customer’s authorized Users and Requesters 99.5% of the time in any given calendar year, excluding Maintenance Windows (“Service Level Commitment”). Notwithstanding the foregoing, Blue Mountain does not guarantee internet connectivity or network availability between Customer and the Blue Mountain hosting servers, as such availability can involve numerous third parties and is beyond the control of Blue Mountain. Blue Mountain will not be liable for any downtime caused in whole or part by circumstances beyond Blue Mountain’s reasonable control, by a third-party data center provider, nor for any downtime that Customer experiences as a result of Customer or Customer’s Users’ own network connectivity failure, problems, or issues. If Customer experiences a System outage and is unable to access the System outside of a Maintenance Window, Customer must immediately contact Blue Mountain’s help desk, providing any/all necessary information that may assist Blue Mountain in determining the cause of the outage. Blue Mountain will determine in good faith whether the outage was within Blue Mountain’s reasonable control. Blue Mountain’s commercially reasonable efforts to restore the System, together with Customer’s termination rights, if any, under Section 7.2, shall be Customer’s sole and exclusive remedies, and Blue Mountain’s sole liability, for Blue Mountain’s failure to meet the Service Level Commitment.
10.2. Disclaimer of Warranties. BLUE MOUNTAIN MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM, THE SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SYSTEM. WITHOUT LIMITING THE FOREGOING, BLUE MOUNTAIN DISCLAIMS ANY WARRANTY THAT THE SYSTEM, THE SERVICES PROVIDED BY BLUE MOUNTAIN, OR THE OPERATION OF THE SYSTEM ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. BLUE MOUNTAIN MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, BLUE MOUNTAIN DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS REGARDING INTERPRETATION OF OR COMPLIANCE WITH GOVERNMENTAL REGULATIONS, INCLUDING BUT NOT LIMITED TO REGULATIONS IMPOSED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION, AND FURTHER DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS REGARDING GOOD MANUFACTURING PRACTICES, AND INTERNATIONAL REGULATORY COMPLIANCE. NEITHER BLUE MOUNTAIN NOR THE SYSTEM IS DESIGNED OR INTENDED FOR UI-LEVEL RPA BOT OR AUTOMATED TOOL USE OR TO PROVIDE ADVICE REGARDING COMPLIANCE WITH REGULATORY REQUIREMENTS OF ANY GOVERNMENTAL JURISDICTION OR ENTITY, AND SUCH IS DISCLAIMED BY BLUE MOUNTAIN.
10.3. Disclaimer of Consequential Damages. BLUE MOUNTAIN HAS NO LIABILITY WITH RESPECT TO THE SYSTEM, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF BLUE MOUNTAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.4. Limitations of Remedies and Liability. BLUE MOUNTAIN’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO A TOTAL AGGREGATE AMOUNT EQUAL TO FIFTY (50) PERCENT OF ALL FEES PAID BY CUSTOMER TO BLUE MOUNTAIN FOR THE SYSTEM DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
TO THE EXTENT NOT PROHIBITED BY LAW, THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, DATA LOSS, DATA RETENTION, NETWORKS OR ENVIRONMENTS. CUSTOMER ACKNOWLEDGES THAT BLUE MOUNTAIN DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET. BLUE MOUNTAIN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM PROBLEMS WITH COMMUNICATION FACILITIES.
11.1. Compliance with Export Laws. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the System. Customer agrees that such export control laws govern Customer’s use of the System (including technical data) and Customer agrees to comply with all such export control laws. Customer agrees that the System will not be used by Customer in order to export, directly or indirectly, any data, information, software programs, and/or materials in violation of any export control laws or will be used for any purposes prohibited by such laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of weapons technology.
12.1. Audit. Upon reasonable notice, Blue Mountain may audit Customer’s use of the System solely to verify compliance with the applicable User, site, and licensing restrictions under this Agreement and the applicable Order Form. Customer shall reasonably cooperate with such audit. If an audit identifies use in excess of Customer’s purchased licenses or other authorized use, Customer shall promptly pay the applicable additional fees.
12.2. Notices. Notices regarding this Agreement to Blue Mountain shall be in writing and sent by first class mail or overnight courier at the address provided at that time on Blue Mountain’s website. Blue Mountain may give notice by means of posting notice on the System, by electronic mail to Customer’s e-mail address on record with Blue Mountain, or by written communication sent by first class mail or overnight courier to Customer’s address on record in Blue Mountain’s account information. All notices shall be deemed to have been given three days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or 12 hours after either sending by e-mail or posting on the System.
12.3. Force Majeure. “Force Majeure Event” means any act or event that (a) prevents a party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other party’s (the “Performing Party”) obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event and for as long as the Force Majeure Event continues. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
12.4. Assignment. Blue Mountain may assign any of its rights or obligations under this Agreement at any time; provided, however, that (A) any assignee of Blue Mountain agrees to abide by all terms and conditions of this Agreement, and (B) Blue Mountain shall not assign the rights granted to Customer Data in Section 3.2 except in connection with the sale (whether by merger, asset sale, equity sale or otherwise) of Blue Mountain. In the event of a sale of substantially all of Customer’s assets by merger, asset sale, equity sale, or other change of control transaction, Customer may assign this Agreement to Customer’s new owner provided the new owner agrees to abide by all obligations of this Agreement and the new owner is not a competitor of Blue Mountain. Otherwise, Customer shall not assign any of its rights or obligations under this Agreement except with the prior written approval of Blue Mountain, which shall not be unreasonably withheld. Any purported assignment of rights in violation of this Section is void, and will constitute grounds for termination of this Agreement pursuant to Section 7.2
12.5. Governing Law; Venue. The laws of the State of Delaware (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction within Delaware, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court having jurisdiction in Delaware; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
12.6. Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the unsuccessful party shall pay to the successful party its reasonable attorneys’ fees and other costs incurred in that action or proceeding, as determined by the tribunal, in addition to any other relief to which the successful party may be entitled.
12.7. Survival of Certain Provisions. Each party hereto covenants and agrees that the provisions in this Agreement related to limitation of liability, confidentiality, infringement indemnity, and payment, in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.
12.8. Amendments. Blue Mountain may modify this Agreement from time to time by providing notice to Customer, including by posting updated terms on Blue Mountain’s website or through the System. Such changes will become effective upon Customer’s next renewal term or continued use of the System following notice of such changes.
12.9. Entire Agreement. This Agreement and the Order Form accompanying this Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than any that are expressly stated in this Agreement.
