The GTC apply at all times to the Bluesky Solutions. The GTC supplement the terms of the applicable Order Form terms, which are hereby incorporated by reference. In the event of any conflict between the GTC and the terms of the applicable Order Form, the applicable Order Form shall prevail.
In addition to terms defined elsewhere in the GTC, the following terms will have the following
meanings when used in the GTC:
1.1 “Applicable Law” means all laws, rules, regulations, and other proclamations having the effect of law anywhere throughout the world that are applicable to any activity carried out or proposed to be carried out by a Party under the GTC.
1.2 “Authorized User” means any Customer employee or contractor: (a) who Customer authorizes to access the Bluesky Solutions on its behalf; (b) for whom a subscription to the Bluesky Solutions has been purchased under an Order Form (defined below); and (c) who has been supplied access credentials to the Bluesky Solutions by Customer (or by Bluesky, at Customer’s request).
1.3 “Bluesky Data” means any: (a) data, information or other routines generated by or on behalf of Bluesky through any automated data analysis, processing or other operations of the Bluesky Solutions; and (b) aggregated and de-identified data generated or collected by or on behalf of Bluesky in connection with the Bluesky Solutions, including any such data based on or derived from the Customer Data.
1.4 “Bluesky Documentation” means any documentation that Bluesky makes available to Customer that describes the features or requirements of the Bluesky Solutions .
1.5 “Bluesky Solutions ” means Bluesky’s proprietary software-as-a-service software platform through which Authorized Users can use the Bluesky Solutions functionality.
1.6 “Confidential Information” means any information disclosed, directly or indirectly, by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) pursuant to the GTC that: (a) is designated as “confidential,” or in some other manner to indicate its confidential nature; or (b) otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure and the nature of the information itself. Without limiting the foregoing, the Bluesky Solutions and Fees (defined in Section 5.1) are Bluesky’s confidential information, and the Customer Data are Customer’s confidential information. However, Confidential Information does not include any information which: (i) is or becomes generally known and available to the public through no act or omission of the Recipient; (ii) was already in the Recipient’s possession without a duty of confidentiality owed to the Discloser at the time of the Discloser’s disclosure, as shown by the Recipient’s contemporaneous records; (iii) is lawfully obtained by the Recipient from a third party who has the right to make such disclosure; or (iv) is independently developed by the Recipient without breach of an obligation owed to the Discloser and without any use of or reference to the Discloser’s Confidential Information.
1.7 “Customer Data” means any data (including metadata) that (a) Customer transmits to the Bluesky Solutions through the functionality available on the web-accessible user interface of the Bluesky Solutions ; or (b) Bluesky collects from Customer’s service account (including through a read only account provided to Bluesky) with each Data Cloud Provider, but in all cases excluding Bluesky Data.
1.8 “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through third-party services (including Data Cloud Providers).
1.9 “Data Cloud Provider” means each third party cloud data warehouse provider set forth in an Order Form.
1.10 “Data Insights” means, with respect to each Data Cloud Provider, any insights regarding Customer’s cost visibility and expense query patterns that may be made available by Bluesky to Customer through the Bluesky Solutions .
1.11 “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Bluesky Solutions that Bluesky may provide to Customer from time-to-time during the Subscription Term (defined in Section 7.1), but excluding any New Version.
1.12 “New Version” means any new version of the Bluesky Solutions that Bluesky may from time-to-time introduce and market generally as a distinct product (as may be indicated by Bluesky’s designation of a new version number), and which Bluesky may make available to Customer at an additional cost.
1.13 “Order Form” means a mutually executed order form referencing the terms of the GTC.
1.14 “Party” means Bluesky or Customer individually, and “Parties” means Bluesky and Customer collectively.
1.15 “Professional Services” means implementation services, consulting services or other related services provided under an Order Form and may also be referred to in the Agreement as “Consulting Services” or “Services”.
2.1 License Grant. Subject to Customer’s ongoing compliance with the GTC and any applicable Order Form (including timely payment of all applicable fees), Bluesky hereby grants to Customer a non-exclusive, non-transferable (except under Section 12.5), non-sublicensable, internal right (a) during the Subscription Term to allow its Authorized Users pursuant to the applicable Order Form to (i) access the Bluesky Solutions solely to view Data Insights; and (ii) to use the Bluesky Documentation solely in connection with such use of the Bluesky Solutions ; and (b) use the Data Insights solely for Customer’s internal business purposes to reduce costs and improve workload efficiency with respect to Customer’s Data Cloud Provider usage (each, an “Authorized Purpose”).
2.2 Licenses from Customer. Customer acknowledges that Bluesky’s provision of the Bluesky Solutions require Bluesky access to Customer’s service account with each Data Cloud Provider and the Customer Data therein.Accordingly, upon or prior to execution of the GTC, Customer will create and provide Bluesky with access to a read only account for each such service account. Customer hereby grants to Bluesky a limited, irrevocable, non-transferable (except under Section 12.5), royalty-free and worldwide right during the Subscription Term to access each such service account and read only account solely to provide the Bluesky Solution to Customer. Customer further hereby grants to Bluesky a non-exclusive, irrevocable, perpetual, non-transferable (except under Section 12.5),royalty-free and worldwide license to use, store, reproduce, modify, analyze and otherwise process and exploit the Customer Data for internal business purposes as necessary to (a) during the Subscription Term, make available the Bluesky Solutions , create and provide the Data Insights, and otherwise perform its obligations under the GTC; and (b) improve and market Bluesky’s products and services (provided that in no event will Bluesky convey any Customer Data in a manner that could reasonably identify Customer as its source) and produce Bluesky Data. Each of the foregoing rights and licenses are sublicensable by Bluesky to any of its affiliates and to subcontractors permitted under Section 12.5.
2.3 Authorized Users . Customer is solely responsible for: (a) identifying and authenticating all Authorized Users; (b) approving access by such Authorized Users to the Bluesky Solutions; (c) protecting against unauthorized access by Authorized Users; (d) maintaining the confidentiality of usernames, passwords and account information for Authorized Users; and (e) all activities that occur under its and its Authorized Users’ usernames, passwords or accounts. Bluesky is not responsible for any harm arising from any acts or omissions of any Authorized Users, including individuals who were not authorized to access the Bluesky Solutions but who were able to gain access for any reason. Customer will notify Bluesky immediately of any actual or suspected breach of the GTC by any Authorized User. Any breach of the GTC by any Authorized User is deemed a breach by Customer.
2.4 Monitoring; Suspension. Bluesky may, but is under no obligation to, monitor Customer’s use of the Bluesky Solutions . Bluesky may, in its reasonable discretion, suspend access to the Bluesky Solutions and Data Insights if Bluesky believes that: (a) Customer is in breach of the GTC; (b) use of the Bluesky Solutions as contemplated in the GTC poses a security risk; (c) Customer’s use of the Bluesky Solutions violates, misappropriates, or infringes the rights of Bluesky or a third party; (d) there is a bug or performance issue with the Bluesky Solutions that adversely affects Bluesky’s servers or other systems or Customer’s use of the Bluesky Solutions otherwise imposes unexpected or excessive demands on the same; or (e) any Applicable Law prohibits Bluesky from performing any of its obligations
under the GTC. Customer will pay Bluesky within 30 days of written notification any fees applicable to Customer’s use of the Bluesky Solutions in excess of its rights.
2.5 Restrictions. Customer may not, directly or indirectly, and may not authorize any third party (including any Authorized User) to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how of, the Bluesky Solutions, or reconstruct, or discover, any hidden or non-public elements of the Bluesky Solutions (except to the extent expressly permitted by Applicable Law notwithstanding this restriction); (b) translate, adapt, or modify the Bluesky Solutions; (c) write or develop any program based upon the Bluesky Solutions or Data Insights (except in the exercise of Customer’s rights under Section 2.1(b)), or, to the fullest extent permitted by Applicable Law, otherwise use any portion of the Bluesky Solutions or Data Insights for benchmarking activity or in any manner for the purpose of developing, distributing or making accessible products or services that compete with any portion of the Bluesky Solutions; (d) sell, sublicense, transfer (except under Section 12.5), assign, lease, rent, distribute, or grant a security interest in the Bluesky Solutions or Data Insights; (e) use any portion of the Bluesky Solutions or Data Insights for any purpose other than the applicable Authorized Purpose; (f) permit any portion of the Bluesky Solutions to be used by any persons other than Authorized Users; (g) alter or remove any trademarks or proprietary notices contained in or on the Bluesky Solutions or Data Insights; (h) circumvent or otherwise interfere with any authentication or security measures of the Bluesky Solutions , or otherwise interfere with or disrupt the integrity or performance of the Bluesky Solutions; (i) use any portion of the Bluesky Solutions or Data Insights in violation of any Applicable Laws; or (j) transmit to or from the Bluesky Solutions any unlawful, infringing, harmful or other data or code, provided that if Customer knows or suspects that Customer has so
transmitted to the Bluesky Solutions any such data or code, then Customer will immediately provide Bluesky with written notice of the same and reasonable assistance to help enable Bluesky to identify and delete the data or code from its systems.
2.6 Feedback. Customer may elect to provide to Bluesky ideas, suggestions, or feedback related to any aspect of the Bluesky Solutions or Data Insights (“Feedback”). Customer hereby assigns to Bluesky all right, title, and interest in and to the Feedback, and acknowledges that Bluesky may implement, use, and otherwise exploit, in any way without restriction, the Feedback, without any fees, attribution or other obligations to Customer.
3.1 Support Services. Subject to Customer’s ongoing compliance with the GTC (including timely payment of all applicable fees), Bluesky further agrees to: (a) provide commercially reasonable technical support for the Bluesky Solutions to Customer per the terms of the Order Form (b) use commercially reasonable efforts to: (i) respond to such support requests in a timely manner; and (ii) resolve such requests by providing updates and/or workarounds to Customer, consistent with Bluesky’s assigned severity level to the issues identified in such requests and their impact on Customer’s business operations, in Bluesky’s reasonable discretion; and (c) use commercially reasonable efforts to make the Bluesky Solutions available to Customer at least 99% of the time measured on a rolling 6-month basis, excluding downtime for any of the following: (1) access to or use of the Bluesky Solutions by Customer or any end-user acting on Customer’s behalf that does not comply with the GTC; (2) Customer Failure (defined in Section 4.2); (3) Force Majeure (defined in Section 12.6); (4) failure, interruption, outage, or other problem with any software, hardware, database, system, network, facility, or other matter not supplied by Bluesky pursuant to the GTC; (5) scheduled downtime for routine maintenance of the Bluesky Solutions ; or (6) suspension of access to the Bluesky Solutions pursuant to Section 2.4.
3.2 Updates. Bluesky will provide Customer with all Maintenance Releases that Bluesky may, in its sole discretion, make generally available to its licensees at no additional charge. Customer is required to accept all Maintenance Releases. All Maintenance Releases provided by Bluesky to Customer are deemed licensed to Customer in Section 2.1. Customer does not have any right hereunder to receive any New Versions that Bluesky may, in its sole discretion, release from time-to-time.
4.1 Customer Systems; Customer Data. Notwithstanding anything to the contrary in the GTC, Customer: (a) has and will retain sole control over the security of, operation, maintenance, management of, and all access to and use of, the Customer Systems, and Customer is solely responsible for obtaining all internet connectivity necessary to access and use the Bluesky Solutions at all times during the Subscription Term; (b) will at all times during the Subscription Term: (i) set up, maintain, and operate in good repair all Customer Systems on or through which the Bluesky Solutions is accessed or used as necessary to enable Bluesky to perform its obligations under the GTC; (ii) if applicable, will provide Bluesky personnel with such access to the Customer Systems as is necessary for Bluesky to perform its obligations in connection with the GTC; and (iii) will provide all cooperation and assistance as Bluesky may reasonably request to enable Bluesky to exercise its rights and perform its obligations in connection with the GTC; and (c) is solely responsible for any security vulnerabilities and the consequences of such vulnerabilities arising from Customer Data, including any viruses, Trojan horses, worms or other programming routines in Customer Data that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.
4.2 Failure or Delay. Bluesky is not responsible or liable for any delay or failure of performance arising from in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the GTC, including any unavailability, errors, defects or other issues in connection with the Customer Systems or Customer Data (“Customer Failure”).
5.1 Fees. Customer will pay Bluesky all fees of the type and in the amounts set forth in the applicable Order Form (“Fees”). All Fees are non-cancellable, non refundable and non-recoupable. After the Initial Term (defined in Section 7.1), Bluesky may increase the Fees upon notice to Customer.
5.2 Payment Terms. Unless otherwise set forth in the applicable Order Form, Fees are due and payable in United States dollars as follows: (a) for the Initial Term, upon the Order Form Effective Date (defined in Section 7.1); and (b) for each Renewal Term (defined in Section 7.1), upon the first day thereof, in each case without deduction or setoff. Interest accrues from the due date at the lesser of 1.5% per month or the highest rate allowed by Applicable Law.
5.3 Taxes. Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the GTC or the transactions contemplated by the GTC (other than taxes based on Bluesky’s net income).
6.1 Ownership. As between the Parties: (a) subject to the license that Bluesky grants to Customer in Section 2.1, Bluesky owns and retains all rights, title and interest in and to the Bluesky Solutions and Bluesky Data, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other technology in any form pertaining to the Bluesky Solutions or Data Insights (collectively, “Bluesky IP”), and Bluesky has the right to use and exploit all such Bluesky IP without restriction; and (b) Customer solely owns and retains all rights, title and interest in and to the Customer Data, subject to the licenses granted to Bluesky in Section 2.2.
6.2 Reservation of Rights. All rights that a Party does not expressly grant to the other in the GTC are hereby reserved and neither Party grants to the other any implied rights or licenses under any theory.
7.1 Term. These GTC apply as of the effective date specified in the first Order Form executed by the Parties and shall continue, unless terminated earlier in accordance with the GTC, until all Order Forms have expired or been terminated in accordance with the GTC. The term of each Order Form will begin on the effective date specified in such Order Form (“Order Form Effective Date”) and continue, unless terminated earlier in accordance with the GTC, until the expiration of the initial term specified in such Order Form (“Initial Term”). Thereafter, each Order Form will automatically renew for immediately successive renewal term(s) (each, a “Renewal Term,” and together with the Initial Term, the “Subscription Term”) of the same duration as the then immediately preceding term, unless either Party provides written notice of non-renewal at least 90 days before the expiration of the Initial Term or then-current Renewal Term, as applicable.
7.2 Termination. Either Party may terminate the GTC or any Order Form by written notice if (a) the other Party is in material breach of the GTC or such Order Form, where such material breach is not cured within 30 days after written notice of such breach from the non-breaching Party; or (b) the other Party files for or is adjudicated bankrupt or suffers any other analogous event. For the avoidance of doubt: (i) by way of example only, Customer’s noncompliance with Section 2.5 or 5 is deemed a material breach of the GTC; (ii) the expiration or termination of one Order Form will not impact the term of any other Order Forms then in-effect; and (iii) any termination of the GTC automatically will terminate all then-effective Order Forms.
7.3 Effect of Termination. Upon the effective date of expiration or termination of the GTC for any reason: (a) all outstanding Order Forms and access to the Bluesky Solutions and Data Insights will automatically terminate; (b) Customer will terminate Bluesky’s access to Customer’s service account (including any read only account provided to Bluesky) with each Data Cloud Provider; (c) Bluesky will cease accessing Customer’s service account (including through a read only account provided to Bluesky) with each Data Cloud Provider; and (d) all outstanding payment obligations of Customer will become due and payable immediately. Upon the effective date of expiration or termination of an Order Form for any reason: (i) all access to the applicable Bluesky Solutions and Data Insights will automatically terminate; (ii) Bluesky will cease accessing Customer’s service account (including through a read only account provided to Bluesky) with each applicable Data Cloud Provider; and (iii) all outstanding payment obligations of Customer under such Order Form will become due and payable immediately. For the avoidance of doubt, upon expiration or termination, Bluesky has no further obligation to store or permit retrieval of Data Insights or to store Customer Data. The following Sections, and any defined terms and provisions required to interpret or enforce those Sections (but only to the extent required for such interpretation or enforcement), will survive the termination or expiration of the GTC, along with any and all liabilities accrued prior to the effective date thereof: 2.3, 2.5, 2.6, 5, 6, 7.3, 8, and 10 through 12 (inclusive).
The Receiving Party will use the same efforts to protect the Disclosing Party’s Confidential Information from loss or alteration, and unauthorized access, use or disclosure, that it uses to protect its own confidential information of similar sensitivity, but in no event will such efforts be less than reasonable efforts. The Receiving Party may only use the Disclosing Party’s Confidential Information to perform its obligations and exercise its rights under the GTC. The Receiving Party will not disclose or provide access to the Disclosing Party’s Confidential Information to any third party except: (a) for disclosures to the Receiving Party’s: (i) employees with a need to know such information to perform its obligations under the GTC and to subcontractors permitted under Section 12.5; or (ii) professional advisors or potential investors or acquirers (each in (i) and (ii), a “Permitted Recipient”); and (b) the Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled by Applicable Law to do so; provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party will be liable for any breach of the GTC by its Permitted Recipients.
9.1 Mutual. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full corporate right, power, and authority to enter into and perform its obligations and grant the licenses it grants or is required to grant under the GTC; (c) the execution of the GTC and any Order Form by its representative whose signature is set forth on the GTC and the Order Form, as applicable, has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed by both Parties, the GTC and each Order Form will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
9.2 By Customer. Customer further represents, warrants and covenants to Bluesky that: (a) Customer owns or otherwise has and will continue to have the necessary rights in and relating to the Customer Data so that, as received by Bluesky and used in accordance with the GTC, it does not and will not infringe, misappropriate, or otherwise violate any rights of any third party or violate any Applicable Laws; and (b) Customer has and will continue to have all permissions and approvals as may be necessary for Bluesky to access Customer’s service account (including through a read only account provided to Bluesky) with each Data Cloud Provider.
10.1 By Bluesky. Bluesky will: (a) defend, or, at its option, settle, any claim brought against Customer by a third party alleging that the Bluesky Solutions for which there is an active Subscription Term at the time of the claim constitutes a direct infringement of any intellectual property rights of any third party (each, a “Claim”); and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by Bluesky; provided that Customer provides Bluesky: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Bluesky in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, Bluesky may, at its sole option and expense: (1) procure for Customer the right to continue to use the infringing items; (2) modify the infringing items to make them non-infringing; (3) replace the infringing items with non-infringing technology having substantially similar capabilities; or (4) if none of the foregoing is commercially practicable, terminate the GTC. Notwithstanding the foregoing in this Section 10.1, Bluesky will have no obligation under this Section 10.1 (x) for any use of the Bluesky Solutions in combination with software, products, services or technologies not provided by Bluesky, to the extent that the Bluesky Solutions would not be infringing but for such combination; (y) arising from or in connection with Customer’s failure to use the Bluesky Solutions in accordance with the GTC; or (z) for any claims that fall within the scope of Section 10.3.
10.2 Disclaimer. SECTION 10.1 STATES THE ENTIRE LIABILITY OF BLUESKY, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY CLAIMS FALLING WITHIN THE SCOPE OF SECTION 10.1.
10.3 By Customer. Notwithstanding anything to the contrary in Section 10.1, Customer will defend, or, at its option, settle, any claim brought against Bluesky by a third party arising from or in connection with any Customer Data or alleging that any Customer Data and/or any use of or access to the same in accordance with the GTC infringes, violates or misappropriates any third party’s rights or violates any Applicable Laws; provided that Bluesky provides Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with, the defense or settlement of any such claim. Customer will pay all damages finally awarded against Bluesky (or the amount of any settlement Customer enters into) with respect to any such claim defended by Customer. Bluesky may appear in connection with such claims, at Bluesky’s expense, through counsel reasonably acceptable to Customer.
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE FOLLOWING TERMS APPLY:
BLUESKY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. WITHOUT LIMITING THE FOREGOING, BLUESKY DOES NOT REPRESENT OR WARRANT THAT: (a) THE BLUESKY SOLUTIONS WILL BE ERROR-FREE OR UNINTERRUPTED; (b) THE BLUESKY SOLUTIONS WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE; (c) ANY DATA OR INSIGHTS PROVIDED BY OR THROUGH THE BLUESKY SOLUTIONS (INCLUDING ANY THIRD PARTY CONTENT) WILL BE ACCURATE OR COMPLETE; OR (d) SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA OR CUSTOMER’S DEVICES OR ANY THIRD PARTY TECHNOLOGY USED IN CONNECTION WITH THE BLUESKY SOLUTIONS.
EXCEPT FOR LIABILITY AND DAMAGES ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF SECTION 2.5 OR SECTION 9: (i) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS GTC OR ITS TERMINATION, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) EACH PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS GTC WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE ORDER FORM(S) GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
EACH PROVISION OF THIS GTC THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS GTC BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS GTC.
12.1 Interpretation. Unless a clear contrary intention appears: (a) any term defined in the singular includes the plural when required by the applicable context; (b) the headings in the GTC are for convenience of reference only, will not be deemed to be a part of the GTC, and will not be referred to in connection with the interpretation of the GTC; and (c) uses of “including” mean “including, without limitation.” Any ambiguity in the GTC will be interpreted without regard to which Party drafted the GTC or any part thereof.
12.2 Non-Solicitation. During the Subscription Term and for one (1) year thereafter, Customer shall not, and shall not assist any other Party to, directly or indirectly recruit or solicit, other than by general advertisement not directed specifically to any person or company, for employment or engagement as an independent contractor any person then or within the prior six (6) months employed or engaged by Bluesky.
12.3 Changes. Bluesky may make changes or updates to the Bluesky Solutions during the Subscription Term, including to reflect changes in technology, industry practices and patterns of system use; however any such changes will not result in a material reduction in the level of performance or availability of the Bluesky Solutions provided to Customer during the Subscription Term.
12.4 Audit. Bluesky may reasonably audit Customer’s use of the Bluesky Solutions and Data Insights to assess whether Customer’s use is in compliance with the GTC. Customer agrees to cooperate fully with such audit and provide reasonable assistance and access to information. Any such audit will not unreasonably interfere with Customer’s normal business operations.
12.5 Assignment; Subcontractors. Neither Party may assign the GTC or any of its rights under the GTC without the prior written consent of the other Party, except that Bluesky may assign the GTC without the consent of Customer as part of a corporate reorganization, to any Bluesky affiliate, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the GTC, or a similar transaction or series of transactions. Subject to the foregoing, the GTC will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Bluesky in its sole discretion may from time-to-time engage third parties to perform any of its obligations under the GTC, including hosting or other services. Bluesky will be responsible for all such parties’ compliance with the applicable terms of the GTC.
12.6 Force Majeure. Neither Party will be liable for any failure or delay in its performance under the GTC due to any cause beyond its reasonable control, including an act of war, terrorism, act of God, earthquake, flood, pandemic, epidemic, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet, but in all cases excluding the payment of fees (each, a “Force Majeure”). The delayed Party must give the other Party notice of such Force Majeure and use commercially reasonable efforts to correct such failure or delay in performance.
12.7 Governing Law. Except for the right of either Party to apply to a court of competent jurisdiction for a temporary restraining Order Form, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, if there is any dispute between the Parties arising out of the GTC (each, a “Dispute”), the authorized representatives of each Party will negotiate in good faith to resolve the Dispute. If such representatives cannot resolve the Dispute after no less than 30 days of good faith negotiations, then either Party may pursue all available remedies exclusively in courts of competent jurisdiction in Santa Clara County, California, and each Party waives all rights to challenge such venue on any theory. This GTC will be governed by the laws of the State of California, excluding its conflicts of laws principles.
12.8 Entire GTC; Order Form of Precedence. All Order Forms are incorporated by reference into the GTC. In the event of a conflict between the terms of the GTC and any Order Form, the terms in the Order Form will prevail unless expressly stated otherwise. This GTC, including all Order Forms, is the sole agreement of the Parties concerning the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings with respect to said subject matter. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify the GTC, regardless of any failure of Bluesky to object to such terms.
12.9 Third Party Beneficiaries. This GTC is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the GTC.
12.10 Waivers; Amendments. All waivers of rights arising under the GTC must be made in writing by the Party waiving rights, and all amendments to the GTC must be made in writing and signed by authorized representatives of both Parties.
12.11 Notices. Any notice required or permitted under the GTC will be effective if it is: (a) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth in the signature block below, and with the appropriate postage affixed; or (b) sent via electronic mail to the applicable person set forth in the signature block below. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two business days following the date of mailing, one business day following delivery to a courier, and/or on the same day an electronic mail is sent to the recipient. Notwithstanding the foregoing in this Section 12.12, any notices threatening litigation or alleging breach of the GTC must be sent under method (a) in this Section.
12.12 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the GTC will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
12.13 Severability. If any provision in the GTC is held by a court of competent jurisdiction to be unenforceable, then: (a) it will be severed from the GTC; (b) the court of competent jurisdiction will replace the severed provision with another provision that most closely reflects the Parties’ original intent to the fullest extent permitted by Applicable Law; and (c) the GTC will remain in full force and effect.