END USER LICENSE AND SERVICES AGREEMENT
BLU LEADERSHIP, LLC
End User License and Services Agreement
Last Updated: March 12, 2024
BLU Leadership, LLC (the “Company”) has developed and owns certain cloud-based online coaching tools and software programs, including this program. While you, the end-user, may have obtained a license to use this program from a reseller other than the Company, you may not use the program unless and until you agree to be bound by this End User License and Services Agreement with the Company (this “Agreement”).
BY CLICKING ON THE “ACCEPT” BUTTON, TAKING AN ACTION TO INDICATE ACCEPTANCE, OR USING THE PLATFORM (AS DEFINED BELOW), YOU AGREE TO THE TERMS OF THIS AGREEMENT WITH THE COMPANY. IN THE EVENT AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATE OR OTHER PUBLIC OR PRIVATE ENTITY, END USER REFERS TO THAT ENTITY, AND SUCH INDIVIDUAL CERTIFIES THAT HE/SHE IS AN AUTHORIZED REPRESENTATIVE OF THE END USER. IF END USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON, DISCONTINUE THE SET-UP AND INSTALLATION OR DISCONTINUE USE OF THE PLATFORM. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE OR PLATFORM THAT END USER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THE COMPANY’S PLATFORM.
1. Definitions. The following capitalized terms shall have the meanings set forth below:
(a) “Documentation” means user manuals, technical manuals, technical specifications, and any other materials provided by the Company, in printed, electronic, or other form, that accompany and describe the use and operation of the Platform.
(b) “End User” means the party that has licensed the Platform for its own use from the Company or through an authorized third party.
(c) “End User Data” means data entered or uploaded to the Platform by the End User.
(d) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(e) “Order Form” shall mean the invoice or order form that sets forth the number of licenses purchased by an End User, additional training services, maintenance and support services and any other professional services purchased by an End User from the Company.
(f) “Platform” shall mean the platform and any related software that is hosted on a server owned or controlled by the Company and accessible to End Users who have purchased a subscription or license to the platform; and which includes the virtual platform services offered by the Company under this Agreement.
(g) “Term” means the period of time indicated on an End User’s subscription or Order Form.
2. Licenses and Restrictions.
(a) License Grant. Subject to End User’s payment of all fees and other amounts as provided herein, and to the limitations and other terms and conditions of this Agreement, the Company grants End User a nonexclusive, nontransferable, non‑sublicensable license, during the Term, to: (i) access the Platform in accordance with its Documentation; and (ii) use the Platform only for End User’s own internal business purposes.
(b) Restrictions. End User may not (and may not permit any third party to): (i) modify, incorporate or use in any other works, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from or create derivative works based on the Platform; (ii) make unauthorized copies of the Platform; (iii) disclose, distribute, transfer or market the Platform to third parties; (iv) remove or modify any proprietary notices, labels or marks on or in any copy of the Platform; (v) distribute, sell, sublicense, rent, lease or use the Platform (or any portion thereof) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Platform available to third parties; (vi) publicly disseminate Platform performance information or analysis (including, without limitation, benchmarks and performance tests) from any source relating to the Platform; (vii) use the Platform or reports generated by the Platform in End User’s products or services or in its marketing of products or services to third parties; (viii) access the database that is embedded in the Platform with applications other than the Platform; or (ix) use the Platform other than as permitted herein. Notwithstanding anything to the contrary in this Agreement, End User may allow a third party to use the Platform for the internal business purposes of End User, provided that such party is subject to the license terms and restrictions on use of the Platform and the confidentiality provisions set forth in this Agreement. End User shall be responsible for the acts or omissions of such party as if such acts or omissions were committed by End User.
(c) Service Availability. With respect to an End User’s access to the Platform, End User acknowledges and agrees that the Platform or End User’s access to the Platform may not be available at certain times as a result of routine maintenance, technical difficulties, equipment malfunctions, internet connectivity or due to circumstances beyond the Company’s reasonable control.
(d) Login and Passwords. End User shall ensure that any login and password information provided to End User by the Company is kept confidential and not disclosed or used by any third party other than End User’s designated employees using the Platform on End User’s behalf. End User is responsible for all activity on or through its account.
(e) Self-help Remedy. End User acknowledges and agrees that the Company may suspend End User’s access to the Platform, or portions thereof, if the Company reasonably determines that the End User’s use of the Platform does, or is likely to, violate this Agreement and/or if any other security threats exist. If the Company suspends End User’s access to the Platform, the Company shall promptly provide End User with written notice and the Company agrees to re-enable access to the Platform upon verification that the End User has ceased any further improper use of the Platform, and/or that the Platform has otherwise been secured. Notwithstanding the above, Customer expressly acknowledges and agrees that the Company does not have a duty to monitor Customer’s use of the Platform and the Company’s failure to discover Customer’s violation of the above-referenced sections, or failure to suspend Customer’s access to the Platform, shall not absolve Customer from any liability, responsibilities or duty to indemnify the Company under this Agreement. This remedy is in addition to any other remedies the Company may have, including the Company’s right to terminate this Agreement due to Customer’s material breach of this Agreement.
(f) Data Security. The Company agrees to implement and maintain industry standard administrative, physical, and technical safeguards to minimize the risk of unauthorized access to End User Data. End User acknowledges and understands, however, that the Company uses a third-party hosting provider and that no online platforms can be 100% secured. The Company provides no representations and warranties with respect to data privacy or security, including (without limitation) security of the End User Data.
3. Collection and Use of End User Information. The Company may use automatic means (including, for example, cookies and web beacons) to collect information about the Platform and the End User’s use of the Platform (which is included in the definition of End User Data). The End User also may have the option or be required to provide certain information about the End User as a condition to using the Platform or certain of its features or functionality. The Company’s privacy policy (the “Privacy Policy”), which is available at https://bluleadership.com/ and which may be updated from time to time without notice, governs the Company’s collection, use, and disclosure of personal information (as such term is defined in the Privacy Policy) in connection with the Platform. By downloading, installing, using, and providing information to or through the Platform, End User consents to all collection, use, disclosure, and any other actions taken by the Company with respect to End User Data pursuant to the Privacy Policy.
4. Access to End User Systems. End User understands and agrees that the Company may have limited access to End User’s systems and data for the limited purposes of: (i) trouble-shooting any issues that may arise for End User at End User’s request or as flagged by the Company’s hosted provider or third-party vendors that identify security or performance issues; and (ii) retrieving data to delete, store or provide to End User in accordance with Section 13 of this Agreement and (iii) retrieving, compiling, aggregating or otherwise using de-identified, anonymized or other non-personally identifiable data. End User agrees that the Company may use any such data for any purpose related to End User’s use of the Platform, including (without limitation) improving the performance of the Platform or developing updates to the Platform, verifying the End User’s compliance with the terms of this Agreement, and enforcing the Company’s rights under this Agreement.
5. Fees. End User shall pay the Company a licensing fee due upon execution of this Agreement and monthly maintenance fees, support fees, and other applicable fees as set forth in the Order Form or agreed upon by the Parties from time to time.
6. Training Services. Subject to the additional costs indicated below, the Company shall provide to End User the following training services for End User:
(a) Training. To the extent that End User requests any training services, the Company may, but is not required to, provide remote training or onsite training at the Company’s then current rates. The Parties shall agree, at the time an End User purchases training services whether the services will be provided remotely or onsite, and End User shall provide access and cooperation as reasonably requested by the Company to conduct the training services.
(b) Additional Fees. In addition to the training fees set forth in Section 5(a)above, End User will reimburse the Company for all reasonable expenses incurred in providing additional training, including but not limited to travel and lodging fees.
7. Confidentiality.
(a) As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
(b) The Receiving Party agrees that it will (i) use Confidential Information for the sole purpose of exercising its rights and performing its obligations under this Agreement, (ii) divulge Confidential Information only to those of its employees, directors, independent consultants or agents who have a need to know such Confidential Information and who are bound by professional duty or in writing (in advance) to confidentiality and non-use obligations at least as protective of such information as this Agreement, and (iii) not disclose any Confidential Information to any third party. The Receiving Party shall notify and cooperate with the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information of the Disclosing Party. The Receiving Party may disclose Confidential Information to comply with an order from a court of competent jurisdiction or with a mandatory requirement of a governing regulatory body, provided such party, to the extent permitted by law and as soon as reasonably practicable under the circumstances, informs the Disclosing Party and allows the Disclosing Party the opportunity to object to the disclosure order or to take action to preserve the confidentiality of the information. The Receiving Party shall cooperate with the Disclosing Party in such party’s reasonable efforts to limit the disclosure of the information. End User acknowledges, understands and agrees that the Company may, as part of its provision of the Platform and/or services to End User, collect, store and use information obtained from End User, including, but not limited to, information about End User’s users and customers (“Information”) for the purposes of the provision of the Platform and services to End User and may use such information for analysis and improvement of the Company’s products and services. End User represents and warrants that it has all rights and permissions necessary to transfer such Information and grant the Company access to such Information as contemplated herein.
(c) Upon termination of this Agreement for any or no reason, the Receiving Party shall (i) immediately cease all use of the Disclosing Party’s Confidential Information, (ii) at the instruction of the Disclosing Party, either promptly destroy all Confidential Information of the Disclosing Party or return all Confidential Information of the Disclosing Party; provided, however that the Receiving Party may retain a reasonable number of copies of the Confidential Information (and any materials embedding the same) for the sole purposes of satisfying legal or regulatory requirements regarding record and data retention that the Receiving Party is obligated to comply with, enforcing this Agreement and/or archiving consistent with good business practices. For the avoidance of doubt, such copies remain subject to the confidentiality and restricted use provisions of this Agreement.
(d) If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
(e) End User understands and agrees that no software platform, tools or hosting services can be completely secured and that there exists a risk of unauthorized third-party criminal acts. While the Company and its vendors implement and utilize industry standard administrative, physical, and technical safeguards to prevent unauthorized activity and access, the Company provides no affirmative representations or warranties regarding data privacy or security and expressly disclaims liability relating to the same.
8. Ownership.
(a) End User acknowledges that the Platform is the Company’s sole and exclusive property and that End User has no rights, proprietary or otherwise, in the Platform except as expressly granted by this Agreement. All title and Intellectual Property Rights in and to the Platform and the Company’s proprietary processes, tools and materials are owned exclusively by the Company and its partners and suppliers. Other than as expressly set forth in this Agreement, no license or other rights in or to the Platform and intellectual property rights thereto are granted to End User, and all such licenses and rights are hereby expressly reserved. Any ideas, suggestions, modifications and the like made by End User with respect to the Platform will be the property of the Company regardless of whether the Company chooses to exercise its rights to incorporate such ideas, suggestions or modifications into the Platform. End User shall not remove, alter, cover or obfuscate any copyright notice or other proprietary rights notice placed in or on the Documentation or in machine language or human readable form.
(b) End User acknowledges that the copyrights, trademarks and service marks relating to the Platform are the Company’s property, which End User may not utilize or copy in any manner or respect, whether on printed materials or media advertising, websites or any other promotional channel or means, without the Company’s express prior written permission.
9. Warranty and Disclaimer.
(a) THE PLATFORM OR SERVICES ARE PROVIDED “AS-IS” AND BREAKTHROUGH STRATEGIES MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BREAKTHROUGH STRATEGIES, ITS PARTNERS AND SUPPLIERS MAKE NO WARRANTY THAT USE OF THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED, 100% SECURE, ERROR-FREE OR DEFECT-FREE, OR AVAILABLE AT ALL TIMES. BREAKTHROUGH STRATEGIES HEREBY SPECIFICALLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS PARTNERS AND SUPPLIERS, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, SECURITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Limitations of Liability. IN NO EVENT WILL END USER’S OR BREAKTHROUGH STRATEGIES’S (AND ITS PARTNERS’ OR SUPPLIERS’) LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED THE TOTAL VALUE OF AMOUNTS THEN PAID BY END USER FOR THE PLATFORM. IN NO EVENT SHALL END USER OR BREAKTHROUGH STRATEGIES (OR ITS PARTNERS’ OR SUPPLIERS’) HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA OR USE, INTERRUPTION OF THE SERVICES, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO ANY CLAIMS ARISING UNDER SECTION 2 (LICENSES AND RESTRICTIONS) OR SECTION 7 (CONFIDENTIALITY).
11. Indemnification.
(a) By the Company. The Company will indemnify End User from any Liability (as defined below) to a third party resulting from infringement of a U.S. patent or any copyright, or misappropriation of any third party trade secrets by the Platform as delivered (“Infringement Claim”); provided that End User (1) promptly notifies the Company of any and all threats, claims and proceedings of such Infringement Claim, (2) gives reasonable assistance in response to the Company’s request for assistance, and (3) grants the Company sole control over defense and settlement thereof. For purposes of this Section 11(a) “Liability” means the resulting costs (including reasonable attorneys’ fees) and damages awarded against End User to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed in settlement. The foregoing obligations do not apply with respect to Platform or portions or components thereof, (i) that are modified after delivery by End User, (ii) combined with other products, processes or materials, where the alleged infringement relates to such combination, (iii) where End User continues allegedly infringing activity after being notified thereof or modifications that would have avoided the alleged infringement have been made available to End User, or (iv) where End User’s use of such Platform is not strictly in accordance with this Agreement. In the event that the Platform is held to or believed by the Company to infringe, the Company at its discretion, will have the option to (A) modify the allegedly infringing Platform to be non-infringing, (B) obtain for End User a license to continue using the Platform, or (C) request the return of the Platform and upon receipt thereof terminate this Agreement as to the infringing Platform and refund to End User the unused portion of the fees paid under this Agreement for such infringing Platform, depreciated on a straight-line basis over a three year period. End User will defend, indemnify and hold the Company harmless against any claims, damages settlements and expenses (including attorneys’ fees) excluded from the Company’s indemnity obligations in (i) – (iv) above. THIS SECTION SETS FORTH BREAKTHROUGH STRATEGIES’S SOLE OBLIGATION AND END USER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF VIOLATION OF THIRD-PARTY RIGHTS.
(b) By End User. End User shall indemnify, defend, and hold harmless the Company, its affiliates, and their respective directors, officers, members, employees, customers, agents, successors and assigns (each, a “Company Indemnitee”) from and against, any and all third party claims and the judgments, awards, losses, costs, expenses, liabilities, and damages of every kind and nature (including, without limitation, reasonable attorney fees) resulting therefrom, incurred by a Company Indemnitee to the extent arising from or in connection with End User’s breach of this Agreement or End User’s intentional or negligent misuse of the Platform in violation of any law or regulation.
(c) Indemnification Procedures. In the event a claim for which indemnification is available under this Section 11(c) (a “Claim”) is filed against a Company Indemnitee or End User (collectively, an “Indemnitee”), the Indemnitee shall promptly notify the indemnifying party in writing of the Claim. No delay on the part of the Indemnitee in notifying the indemnifying party shall relieve the indemnifying party from any obligations hereunder unless, and then solely to the extent that, the indemnifying party is materially prejudiced thereby. The indemnifying party shall assume the defense of, compromise or settle the Claim at its expense, provided, however, that the indemnifying party shall have no right to settle any Claim that in any way assesses blame against any Indemnitee or that provides a remedy other than the payment of money without the Indemnitee’s prior written consent. After the indemnifying party assumes the defense of the Claim, the Indemnitee shall have the right to retain separate counsel, at its own expense, for the purpose of participating in the defense and/or settlement of the Claim. The Indemnitee shall provide to the indemnifying party all information, assistance and authority reasonably requested in order to evaluate any Claim and effect any defense, compromise or settlement thereof at the expense of the indemnifying party.
12. Termination. Except as set forth herein, this Agreement will automatically terminate upon expiration of the Term. Either party may terminate this Agreement on 30 days’ written notice to the other. Additionally, either party may immediately terminate this Agreement upon written notice to the other if the other party breaches this Agreement or becomes subject to bankruptcy or insolvency proceedings. Upon termination of this Agreement, all licenses and rights granted hereunder shall automatically terminate and all amounts owed from one party to the other will automatically become due and payable. End User will not be entitled to any refund and any outstanding fees are immediately due and payable if End User terminates the Agreement for convenience or if the Company terminates the Agreement due to End User’s Breach. If End User terminates the Agreement due to the Company’s breach, the Company shall return any unused fees. No termination of this Agreement will relieve either party of any liability with respect to acts or omissions prior to such termination.
13. Data Return / Deletion. Upon written request by End User following termination or expiration of this Agreement, the Company will provide End User with a zip file (or other common readable format) of End User’s data from the Platform. End User may also request deletion of its data or ongoing storage of its data following termination by providing the Company with a written request. End User acknowledges that there may be some charges if End User requests data storage following termination or expiration of this Agreement.
14. End User Mention. The Company mentions and promotes its End Users from time to time in its business and marketing materials. The Company will obtain End User’s consent prior to using End User’s name and logo to identify End User as a customer of the Company, such as use on the Company’s web site. Any use shall be subject to the Company complying with any guidelines that End User may deliver to the Company from time-to-time regarding the use of its name and logo.
15. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, pandemic, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
16. Miscellaneous Provisions.
(a) Relationship of the Parties. The relationship established between the parties by this Agreement shall be solely that of licensor and licensee. No principal-agent, joint venture, employment, or other relationship exists between the Company and End User. Neither party hereto shall have any right or shall attempt to enter into contracts or commitments on behalf of the other party or to bind the other party in any respect whatsoever.
(b) Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign or transfer this Agreement in whole or in part by operation of law or otherwise, without the other party’s prior written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void. Notwithstanding the foregoing, however, the Company may assign this Agreement without consent to the acquiring or surviving entity in a merger or acquisition in which the Company is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of the Company’s assets.
(c) Severability. In the event any provision of this Agreement shall be determined to be invalid or unenforceable under law, all other provisions of this Agreement shall continue in full force and effect.
(d) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written between the parties with respect to said subject matter. This Agreement may be modified or waived only in a written instrument signed by both parties.
(e) No Waiver. Failure of any party at any time to require performance of any provision of this Agreement shall not affect the right of any party to require full performance thereafter; a waiver by any party of a breach of any provision of this Agreement shall not constitute a modification of this Agreement or prevent that party from again enforcing such term or condition in the future with respect to subsequent events.
(f) Notifications. All notices, requests, demands and other communications hereunder shall be in writing to the address set forth below for the Company and on the applicable Order Form for End User and shall be deemed to have been duly given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail or by e-mail (return receipt requested); or (iii) two (2) days after it is sent if by overnight delivery by a major commercial delivery service.
(g) Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of Wisconsin and the United States of America, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in Milwaukee, Wisconsin for resolution of any disputes arising out or relating to this Agreement.
BLU Leadership, LLC
BLU Leadership, LLC
Website powered by Stark Web Design
Website powered by Stark Web Design