bluChat - monthly user

bluChat 3.0 is a powerful team chat and collaboration application specifically designed to increase cross-departmental productivity for NetSuite-based companies and their partners.  As the only native NetSuite team collaboration tool, bluChat uniquely leverages NetSuite’s “single source of truth” database strengths, and its familiar navigation conventions.  bluChat supports both “on-record” and “off-record” collaboration. Message directly on any writable record such as customers, invoices and custom records. It also provides an area for Channels, Groups and Direct Messages. bluChat automatically supports key NetSuite functions and features, including automatically saving on-record chats directly to the relevant NetSuite record under the appropriate Communications tab (User Notes), for later search and audit.  

Standard features include rich text formatting, file sharing, tagging, user profiles, emojis, task assignment, threads, and notifications to provide better communication, faster issue resolution, and unmatched options for staff and external stakeholder collaboration. 

Taking just minutes to install and deploy, bluChat requires minimal training because it follows the standard NetSuite navigation already familiar to users. No new security measures or passwords are required, and System Admins do not have to set or reset record access permissions for bluChat. bluChat simply becomes additional functionality on whichever records staff and stakeholders already have authorization to access. The history of all chats, whether on-record or off-record, are saved and searchable.

bluChat supports all NetSuite file types, all custom and SuiteApp records, and all NetSuite workflow automations, enabling organizations to easily create their own status alerts and activity triggers. For NetSuite organizations, the combination of bluChat and workflow automation is a particularly powerful toolset for improving operational efficiencies across all departments, saving time and effort while leveraging an organization’s existing investment in customization.

New for Version 3.0

• Reply to Specific Messages. Replying to a specific message is now supported, even if it was earlier in the chat stream. This allows for running commentaries on multiple message threads to remain on topic and in chronological order.

• Reactions.  This provides the ability to react to a user’s message with a specific emoji.
  For example, you could give a

  to a message indicating that you have read the user’s message without having to reply with text directly. Under the message there may be a set of emoji reactions that people selected, along with a number indicating how many people reacted to the message with that emoji. Mouse over the emojis to see user names.

• Additional User Settings.  The ability to disable email notifications and show user titles have been added to the personal profile settings.

BLUCHAT USER AGREEMENT AND TERMS OF USE

Last Modified: May 18, 2023

1. User’s Acceptance

Welcome to the bluChat User Agreement and Terms of Use. This is an agreement (“Agreement”) between Blue Banyan Solutions, Inc. DBA Blu Banyan (“Blu Banyan”), the owner and operator of bluChat and any Blu Banyan software, application, components, and any associated services offered through bluChat (collectively the “Platform”) and User (“User”, “it”, “you”, or “your”), a User of the Platform. Throughout this Agreement, the words “Blu Banyan,” “us,” “we,” and “our,” refer to our company, Blu Banyan, as is appropriate in the context of the use of the words. 

By clicking “I agree”, subscribing to, accessing, or using the Platform, User agrees to be bound by this Agreement and the Privacy Policy.  We may amend this Agreement from time to time and may notify User when we do so. If User does not agree to the changes in this Agreement, please cease using the Platform immediately.

PLEASE BE AWARE THAT THERE ARE ARBITRATION AND CLASS ACTION PROVISIONS THAT MAY AFFECT USER’S RIGHTS. 

2. Platform and User Accounts

Users may be required to register and create an account prior to accessing portions of the Platform.  Any account information will be collected and disclosed in accordance with our Privacy Policy. All users are required to provide truthful, up-to-date, and accurate information when registering for our Platform and must be over the age of 18.  We reserve the right to verify all user credentials and to reject or suspend any users at our sole discretion. User is responsible for ensuring that User maintains the confidentiality and security of your account.  User is solely responsible for all activities under its account while using the Platform. Please notify Blu Banyan immediately if any account is compromised.

 3. Access

Please be aware that you may be required to request access from a subscriber (“Subscriber”) of the Blu Banyan Platform prior to your access and use of the Platform.  Blu Banyan is not responsible for granting any access to any Users and any requests to access must be sent to a Blu Banyan Subscriber.  We reserve the sole discretion in rejecting or terminating any User access and nothing in this Agreement obligates us to provide you access to the Platform.  After access has been granted by a Subscriber and you have agreed to this Agreement, we shall grant User a limited, non-exclusive, fully revocable, non-transferable, non-sublicensable, and non-assignable right to access to the Platform.   Where User downloads any portions of our Platform, we grant User a limited, non-exclusive, fully revocable, non-transferable, non-sublicensable, and non-assignable license to download and use the Platform in accordance with this Agreement.  User may use the Platform solely for internal commercial purposes, User may not transfer or assign your access or license to any third parties. All rights not explicitly granted are reserved for Blu Banyan.  User receives no ownership rights to the Platform. User’s access to use our Platform or User’s license may be terminated at our discretion.  Failure by us to revoke User’s access or license does not act as a waiver of User’s conduct. 

4. Platform

The Platform may offer access to tools that assist User with electronic communications. User may use the Platform solely as permitted and provided for by Blu Banyan and in compliance with all applicable laws.  Please be aware that the Platform, except as expressly stated otherwise, is offered on an “as is” basis and Blu Banyan makes no representations or warranties regarding any portions of the Platform.   Blu Banyan reserves the right to modify, change, and/or discontinue any and all portions of the Platform at any time and may also remove or add associated services at our sole discretion.  Please be aware that any information generated during the use of the Platform is for general informational purposes and is considered User Content (defined below).  User is solely responsible for all such information generated. 

 5. User and Subscribers

The Subscriber that is responsible for providing you access to the Platform is solely responsible for your use of the Platform.   Please be aware that you are solely responsible for any interactions with any other users of the Platform including any Subscriber.   THE USER AGREES TO HOLD BLU BANYAN FREE FROM RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF YOUR ACCESS TO OR INTERACTIONS WITH ANY OTHER USER OR SUBSCRIBER. BLU BANYAN IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY OTHER USER OR SUBSCRIBER, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE  ARISING IN CONNECTION WITH ANY OTHER PARTY ENCOUNTERED ON THE PLATFORM.  User and any third party are solely responsible for resolving any disputes.  Any opinions, advice, or information expressed by any third parties including any Subscribers are those of the individual and the individual alone and they do not reflect the opinions of Blu Banyan.   Any agreements entered into between User and a Subscriber are solely between the parties and Blu Banyan is not a party to such agreements.  User shall indemnify and hold harmless Blu Banyan from any claims related to any Subscribers  in accordance with this Agreement.  Please be aware that any agreements entered into between a Subscriber and any User may not abridge any contractual rights of Blu Banyan as set forth within this Agreement.

6. Web Based Access

Any web based access to the Platform must be activated by a Subscriber.  Where such access  is provided to User, User understands that it is solely responsible for monitoring User’s access to the Platform and any activity that occurs through such access.  User understands that any person, whether permitted or unpermitted, may be able to access the Platform and any User Content contained within the Platform due to the nature of web browsers. Any User Content shared through the Platform may be insecure and may be publicly accessible.  User releases Blu Banyan from any liability arising out of its use of the Platform.

7. Third Party Software

The Platform does not include and Blu Banyan does not warrant, software obtained from any source other than Blu Banyan (“Third Party Software”) including any NetSuite Software (defined below) or any software, code, data, or other materials provided by or accessed by User.  For the avoidance of doubt any Third Party Software includes any software that is not owned by Blu Banyan that is either bundled with the Platform or purchased separately by User. Unless otherwise agreed upon by Blu Banyan any issues with the transmission, processing, or storage of any User Content by any Third Party Software is solely to be resolved by and between User and any party owning such Third Party Software.

8. Additional Software Required 

In order to access the Platform, User may be required to purchase at User’s own expense, a license or access to NetSuite software  (collectively “NetSuite Software”) owned and operated by Oracle America, Inc. (“Oracle”)),  In order for the Platform to operate properly User’s NetSuite Software license or subscription must be current and ongoing.  Blu Banyan shall not be responsible for any issues related to the access of the Platform where User has failed to maintain an up-to-date and current license or subscription to the NetSuite Software. The use of the NetSuite Software is subject to any agreements, terms, conditions, or licenses that are solely entered in by and between User and Oracle. Blu Banyan is not a party to any agreements entered into between User and Oracle. User agrees to abide by all agreements that User may have with Oracle when using the Platform and User agrees that none of User’s actions while using the Platform shall violate such agreement or cause Blu Banyan to violate any applicable agreements with Oracle.

9. Platform Ownership

User acknowledges that the structure, organization, and code of the Platform, any hosted services, and all related software components are proprietary to Blu Banyan and/or Blu Banyan’ licensors and that Blu Banyan and/or its licensors retains exclusive ownership of the Platform, any documentation, information and any and all other intellectual property rights relating to the Platform, including all modifications, copies, enhancements, derivatives, and other software and materials developed hereunder by Blu Banyan.  User shall not sell, copy, reproduce, transfer, publish, disclose, display or otherwise make available the Platform or any portions of the Platform including any modifications, enhancements, derivatives, and other software and materials developed hereunder by Blu Banyan to others in violation of this Agreement.  User shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the Platform, including any modifications, enhancements, derivatives, and other software and materials developed by Blu Banyan.  All rights not expressly granted in this Agreement are reserved for us.

10. User Responsibilities

User shall be exclusively responsible for User’s use of the Platform.  Where a User submits any User Content, we are not responsible for such User Content including but not limited to monitoring access permissions or otherwise ensuring the availability of any User Content. Additionally, User represent and warrant that: (1) User shall use the Platform solely for internal business purposes unless expressly permitted otherwise; (2) User is duly authorized and have the power and authority to enter into this Agreement; (3) any User Content submitted does not violate the confidentiality rights of a third party; (4) that the User Content is owned or properly licensed to User and does not violate any third party agreements; and (5) User shall use the Platform only for legal and lawful purposes and User’s use of the Platform including the submission of any User Content shall comply with all relevant laws in any jurisdiction.  User shall indemnify and hold Blu Banyan harmless for a breach of any provisions of this section.

11. Information Generated

User understands and agrees that the Platform is dependent on the information contained in any User Content submitted by User and User is solely responsible for that information.  User is solely responsible for evaluating and independently verifying all information provided. THE USER AGREES TO HOLD BLU BANYAN FREE FROM RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF USER’S USE OF THE PLATFORM AND ANY INFORMATION GENERATED. BLU BANYAN WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH USER’S USE OF THE SERVICES OR THE PLATFORM. 

12. Privacy Policy

We value User’s privacy and understand User’s privacy concerns.  Our Privacy Policy is incorporated into this Agreement, and it governs User’s submission of information to our Platform.  Please review our Privacy Policy to understand our privacy practices.  All information we collect is subject to our Privacy Policy, and by using the Platform User consents to all actions taken by us with respect to User’s information in compliance with the Privacy Policy.  

13. User Content

A User’s ability to submit, transfer, or transmit any information through the Platform, including but not limited to user information, logins, data, recordings, written content, images, videos, or any other information will be referred to as “User Content” throughout this Agreement. Please be aware that we are not required to host, display, migrate, or distribute any User Content and we may refuse to accept or transmit any User Content. User agrees that User is solely responsible for any User Content submitted and User releases us from any liability associated with any User Content submitted.  Any User Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion.

When User submits any User Content to us, User grants Blu Banyan, its partners, affiliates, representatives and assigns a non-exclusive, limited, fully-paid, royalty-free, revocable, world-wide, universal, transferable, assignable license to display, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works, or use and reuse all or part of the User Content for the purposes of providing User any services associated with the Platform for the duration of this Agreement.  User Content will be shared with third parties that have access to the Platform.  Blu Banyan has no liability to the User for any User Content including all data, information, copy, images, URL names, and anything else submitted by User or any third parties using the Platform.  Specifically, Blu Banyan shall not be liable for any errors related to any User Content. We reserve the right to remove, delete, modify, screen, edit, or refuse any User Content for any reason or no reason, and with or without notice to User. 

14. Communications

User must comply with all relevant United States’ federal,  state, government orders and regulations, and local laws (“Applicable Laws”) while using the Platform including but not limited to the Telephone Consumer Protection Act 47 USC § 227 (“TCPA”) and the Controlling the Assault of Non-Solicited Pornography And Marketing of 2003 (“Can-Spam”).  User represents, warrants, and covenants that it shall comply with all Applicable Laws when using the Platform.  USER ACKNOWLEDGES AND AGREES THAT USER HAS UNDERTAKEN INDEPENDENT EFFORTS TO CONFIRM  COMPLIANCE WITH SUCH APPLICABLE LAWS AND HAS NOT IN ANY WAY RELIED ON ANY COMMUNICATION BY US, WHETHER ORAL OR IN WRITING, REGARDING SUCH COMPLIANCE BY YOU. You shall solely send communications that are considered informational and shall not send any communications for business, promotional, or marketing purposes (“Marketing Purposes”) unless the persons you are sending such communications to have opted into receiving communications for Marketing Purposes .  As required by Can-Spam and TCPA you agree to do the following: (i) maintain opt out lists and remove users who do not wish to receive further communications; (ii) collect opt ins and consents where required; (iii) comply and continue to maintain compliance with all federal, state, provincial, or local laws, regulations, rules; (iv) maintaining an active Do Not Call registry as required by law; and (v)  promptly respond to any complaints regarding TCPA or Can-Spam by users of the Platform; and (vi) provide us with evidence or other reasonably requested information for us to verify your compliance with Section 14 (i)-(v).  Where we believe in our discretion that you have not complied with this Section we may suspend your access to the Platform or your ability to send communications immediately or at any time. We may monitor your communications to ensure compliance with this Agreement and restrict your ability to send any communications at our discretion.  You shall fully indemnify and hold harmless Blu Banyan for all claims related to any violations of Applicable Laws including TCPA or Can-Spam whether made by a third party or us. You acknowledge that you understand that the violation of any such laws may result in significant penalties and other sanctions. You further acknowledge and agree that you should consult with your own counsel, prior to using the Platform, to determine the extent of permissible Marketing Purposes. 

Some or all communications sent  or received via the Platform may use Third Party Software.  Therefore, we are not responsible and have no liability to you regarding the sending or receiving of such communications.  Where applicable you may be required to register with any Third Party Software provider prior to sending communications. Please be aware that issues regarding communications using the Third Party Software may include but are not limited message filtering, spam blocking, throttling, or other communications removal features.  Please review any Third Party Software guidelines or materials to understand their rules for sending and receiving communications.

15. Representations and Warranties

User agrees that it is solely responsible for any User Content submitted by User.  User represents, covenants, and warrants the following:  (1) User owns or has properly licensed any User Content submitted; (2) the User Content does not and will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any third party contractual right; (3) the User Content offered does not violate any United States’ state or federal laws or any third party agreements; (4) User has the unencumbered ownership of all rights or has properly licensed and paid for any rights necessary to the User Content; (5) User has the absolute right to grant to Blu Banyan, all rights, licenses and privileges granted to or vested in Blu Banyan under this Agreement; and (6) any User Content submitted is not deemed confidential. Rules for User Content and Storage

Please be aware that all User Content may be publicly accessible (when used externally outside of the NetSuite Software) or viewed by third parties, thus we cannot guarantee the confidentiality of any User Content. When submitting any User Content, User agrees to the following:

• User agrees that User Content submitted is truthful, up-to-date, and accurate;
• User agrees that any User Content submitted does not contain any confidential information;
• User agrees that any User Content submitted shall not depict violence, nudity, sexual material, animal or child abuse, or encourage violence against others;
• User agrees that any User Content submitted shall not contain hate speech or promote or condone violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, nationality, veteran status, or sexual orientation/gender identity;
• User agrees that any User Content submitted shall not be considered: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.

If User has violated the above or if we believe that any User Content may harm the Platform, User’s access to the Platform may be suspended or terminated and any User Content may be removed. Please be aware that User Content may be stored and secured by NetSuite Software.  Thus, Blu Banyan cannot be responsible for the storage and security of any User Content.  User releases Blu Banyan from any liability related to the transmission, storage, or security of any User Content that User may submit to the Platform.

16. Monitoring User Content

Although the instance of the Platform shall be located within any NetSuite Software, Blu Banyan shall have the right, but not the obligation, to monitor all User Content on the Platform at all times, to determine compliance with this Agreement and any guidelines established by us. Without limiting the foregoing, Blu Banyan shall have the right, but not the obligation, to remove or disable access to any User Content at our sole discretion.

17. Use of the Platform

When using our Platform, User is responsible for User’s use of the Platform. User agrees to the following:

• User may not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Platform;
• User may not use automated bots or other software to send more messages through our Platform than humanly possible;
• User may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements to the Platform or any portion of it;
• User may not access our Platform in an attempt to build a similar or other competitive product;
• User may not use the Platform in an unlawful manner;
• User may not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
• User may not violate or infringe other people’s intellectual property, privacy, or other contractual rights while using our Platform;
• User may not interfere with or disrupt the Platform;
• User agrees not to use the Platform in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing; and
• User agrees that User will not hold Blu Banyan responsible for User’s use of our Platform

If User is discovered to be undertaking any of the aforementioned actions User’s privileges to use our Platform may at our discretion be terminated or suspended.  Additionally, if we believe that User’s actions may harm us or a third party we may suspend or terminate User’s use of the Platform and we may pursue any legal remedy available to us under applicable law.  Generally, we will provide an explanation for any suspension or termination of User’s use of any of our Platform, but Blu Banyan reserves the right to suspend or terminate any account at any time.

18. Third Party Integrations

The Platform may offer links to third party websites, applications, or software (collectively “Third Party Website”).  Please be aware that Blu Banyan is not affiliated with any companies that own the Third Party Website and a link is not an endorsement or recommendation to use any Third Party Website.  The Third Party Website is controlled by companies that are not under the control of Blu Banyan and Blu Banyan shall have no ability to control the availability of or User’s access with any Third Party Website.  User agrees to release us from any liability related to User’s use of any Third Party Website and indemnify us for User’s use of any Third Party Website. In order to use any Third Party Website User may be required to agree to the Third Party Website’s terms of use.  We are not a party to any contracts that User enters into with any companies that control any Third Party Website and are not responsible for Third Party Website payment, errors, or service issues.

19. User Account Holds

From time to time, Blu Banyan may place a hold (“Hold”) on a User’s account. Some of the reasons that we may place a Hold on User’s account include but are not limited to the following: (1) if we have reason that User’s actions have violated this Agreement, may harm our business, are deceptive, misleading, unlawful, or have harmed a third party or interfere with a third party contractual right; or (2) if required in order to comply with a court order, subpoena, writ, injunction, or as otherwise required under applicable laws and regulations. If User has questions about a Hold we may have placed on User’s account, or needs information about how to resolve the Hold, please contact us. Additionally, we may suspend User’s access to the Platform while such Hold is in place.

20. Termination of User

A Subscriber may terminate your account at Subscriber’s discretion.  Blu Banyan shall have no liability to you where a Subscriber has terminated your account. U Please be aware that upon termination of User’s account, access to all or portions of our Platform may become immediately disabled and any User Content stored may not be retained and may be deleted. We shall have no liability to User in regards to any retention of any User Content.  We may terminate User’s use of the Platform or  terminate this Agreement, immediately, if we determine that: (1) User has violated any applicable laws while using our Platform; (2) if User has violated any portion of this Agreement or any of our Platform policies; or (3) if we believe that any of User’s current or future actions may legally harm Blu Banyan, our business interests or a third party, at our discretion. 

21. Platform Security

While Blu Banyan employs electronic safeguards, please be aware that Blu Banyan can make no guarantees regarding any Platform security.  User agrees to exercise caution and common sense when using the Platform.  Please be aware that some or all portions of the Platform (including any User Content) may be accessible by third parties due to User’s settings, any shareable URLs, or any third party integrations, User is solely responsible for any access by such third parties, whether such access is permitted or un-permitted.

22. Platform Availability

Although we try to provide continuous availability to User, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time.  Specifically, we do not guarantee any uptime or specific availability of the Platform.  User agrees and acknowledges that the Platform may not always be either 100% reliable or available.  Only Users who are eligible to use our Platform may do so and we may refuse service or terminate User’s access at any time. We cannot guarantee that anything found on our Platform will work to the functionality desired by User or give User any desired results. 

23. Support

If you require any support please contact your Subscriber. 

24. Modification of Platform

We reserve the right to alter, modify, update, or remove the Platform or any portions thereof, at any time at our discretion.  We reserve the right to discontinue previously offered features or functionality at our sole discretion and without prior notice. We are not liable to User or to any third party for any modification, suspension, or discontinuance of any feature or component of any portion of the Platform. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by the Platform without notice to the User.

25. Idea Submission

Blu Banyan or any of our employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to Blu Banyan. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Blu Banyan’ products might seem similar to ideas User submitted to Blu Banyan. Where User submits any Submission, whether solicited or unsolicited, User agrees that: (1) User’s Submissions and their contents will automatically become the property of Blu Banyan, without any compensation to User; (2) Blu Banyan may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for Blu Banyan to review the Submission; and (4) there is no obligation to keep any Submissions confidential.

26. Disclaimer

THE PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER BLU BANYAN, NOR ANY OF OUR EMPLOYEES, DIRECTORS, OFFICERS, ASSIGNS, AFFILIATES, OR AGENTS MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS RELATED TO: (1) THE PLATFORM; (2) ANY INFORMATION OR User CONTENT PROVIDED VIA THE PLATFORM; OR (3) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO BLU BANYAN, OR VIA THE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. BLU BANYAN DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM IS FREE FROM ANY HARMFUL COMPONENTS. BLU BANYAN DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PLATFORM ARE ACCURATE, COMPLETE, OR USEFUL. BLU BANYAN DOES NOT WARRANT THAT USER’S USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND BLU BANYAN SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.  BLU BANYAN DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO USER’S USE OF THE BLU BANYAN PLATFORM AND/OR ANY SERVICES.  BLU BANYAN DOES NOT CONTROL ANY THIRD PARTY LINKS, SERVICES, SOFTWARE AND INFORMATION ON THE PLATFORM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BLU BANYAN MAKES NO WARRANTIES REGARDING THIRD PARTY WEBSITE AND INFORMATION INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR USER’S USE OF OR RELIANCE ON SUCH THIRD PARTY WEBSITE.

27. Limitation of Liability

IN NO EVENT SHALL BLU BANYAN, OUR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO User FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BLU BANYAN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.  SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO USER. USER MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (1) death or personal injury caused by Blu Banyan’s negligence or that of any of OUR officers, employees or agents; (2) fraudulent misrepresentation; or (3) any liability which it is not lawful to exclude either now or in the future.  WHERE A TOTAL DISCLAIMER OF LIABILITY IS DISALLOWED User AGREES THAT OUR TOTAL LIABILITY TO User SHALL NOT EXCEED THE AMOUNTS User HAS PAID IN THE PAST SIX (6) MONTHS TO USE OUR PLATFORM OR ONE THOUSAND USD, WHICHEVER IS LESSER.

28. Indemnity

User agrees to defend, indemnify and hold harmless Blu Banyan, our officers, directors, employees, affiliates, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:

• User’s use of or access to the Blu Banyan Platform;
• Any dispute related to a third party or Subscriber encountered on the Platform;
• User’s violation of any term of this Agreement; or
• User’s violation of any third party right, including without limitation any copyright, property, or contractual right.

This defense and indemnification obligation will survive this Agreement and User’s use of the Blu Banyan Platform. User also agrees that User has a duty to defend us against such claims and we may require User to pay for an attorney(s) of our choice in such cases.  User agrees that this indemnity extends to requiring User to pay for our reasonable attorneys’ fees, court costs, and disbursements.  In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and User shall be liable for the damages as though we had proceeded with a trial.

29. Copyrights

Takedown Notice

We take copyright infringement very seriously.  If User believes that any copyrighted material owned by User has been infringed upon by someone using our Platform, please send us a message which contains:

• User’s name.
•  The name of the party whose copyright has been infringed, if different from User’s name.
• The name and description of the work that is being infringed
• The location on our Platform of the infringing copy.
• A statement that User has a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
• A statement that User swears, under penalty of perjury, that the information contained in this notification is accurate and that User is the copyright owner or has an exclusive right in law to bring infringement proceedings with respect to its use.

User must sign this notification and send it to our Copyright Agent: Copyright Agent of Blue Banyan Solutions, Inc., DBA as Blu Banyan, located at 1569 Solano Ave., Suite 645, Berkeley, CA 94707.

Counter Notice

In the event that User receives a notification from Blu Banyan stating content posted by User has been subject to a DMCA takedown, User may respond by filing a counter-notice pursuant to the DMCA.  User’s counter-notice must contain the following:

• User’s name, address, email and physical or electronic signature.
• The notification reference number (if applicable).
• Identification of the material and its location before it was removed.
• A statement under penalty of perjury that the material was removed by mistake or misidentification.
• User’s consent to the jurisdiction of a federal court in the district where User lives (if User is in the U.S.), or User’s consent to the jurisdiction of a federal court in the district where User’s service provider is located (if User is not in the US).
• User’s consent to accept service of process from the party who submitted the takedown notice.

Please be aware that we may not take any action regarding User’s counter-notice unless User’s notification strictly complies with the foregoing requirements.    Please send this counter-notice to: Blue Banyan Solutions, Inc., DBA as Blu Banyan, located at 1569 Solano Ave., Suite 645, Berkeley, CA 94707.

30. Choice of Law

This Agreement shall be governed by the laws in force in the state of California. The offer and acceptance of this contract is deemed to have occurred in the state of California.

31. Disputes

Any dispute relating in any way to User’s use of the Platform shall be submitted to confidential arbitration in Berkley, California. Any and all disputes arising out of or relating to this Agreement or usage of the Platform, including fraud in the inducement, whether in contract or tort, law or equity, shall be resolved by final arbitration in accordance with the then applicable rules of Judicial Arbitration and Mediation Implementation Services, Inc. and its then binding rules found at https://www.jamsadr.com/rules-comprehensive-arbitration/.  Arbitration shall be conducted by one (1) arbitrator in English. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. If any party to this Agreement brings an action to enforce its rights hereunder or to interpret or apply this Agreement, the prevailing party shall be entitled to recover all of its costs and expenses, including legal interest thereon and all of its reasonable attorneys’ fees and costs incurred in connection with such action. Any claim or cause of action arising out of, related to or connected with this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. The dispute resolution procedures in this section shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, confidential information, or trade secrets such remedies abovementioned requiring injunctive relief shall be heard in a court of competent jurisdiction located within Alameda County, CA.

Opt-Out

User may opt-out of this dispute resolution provision by notifying Blu Banyan within 30 days of the date on which User entered into this Agreement or purchased a subscription, whichever is earlier. User must do so by writing to Blue Banyan Solutions, Inc., DBA as Blu Banyan, located at 1569 Solano Ave., Suite 645, Berkeley, CA 94707 attn: Arbitration Opt-Out, and User must include User’s name, address, account information, and a clear statement that User does not wish to resolve disputes with Blu Banyan through arbitration.  Where User opts out of arbitration, all disputes shall be heard in a court of competent jurisdiction located within Alameda County, CA.

32. Class Action Waiver

User and Blu Banyan agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. User agrees that User will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action. 

33. Severability

In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

If two or more provisions of this Agreement or any other agreement User may have with Blu Banyan are deemed to conflict with each other’s operation, Blu Banyan shall have the sole right to elect which provision remains in force.

34. Non-Waiver

We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law.  Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.

35. Assignment and Survival

User may not assign User’s rights and/or obligations under this Agreement to any other party without our prior written consent.  We may assign our rights and/or obligations under this Agreement to any other party at our discretion.  All portions of this Agreement that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, User Content licenses, Representation and Warranties, Access, Payment, Indemnification, and Arbitration sections.

36. Entire Agreement and Notices

This Agreement along with the Privacy Policy along with any other applicable agreements constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersede all prior or contemporaneous agreements or understandings written or oral, relating to your use of the Platform. Where User enters into any other agreements with Blu Banyan, that agreement shall control and supersede where a direct conflict occurs. Where this Agreement expressly and directly conflicts with the Privacy Policy, this Agreement shall control. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by a duly authorized representative of each party.  Where this Agreement conflicts with our Privacy Policy or any other documentation listed on our website this Agreement shall supersede and control.  Any ambiguity shall be interpreted by its plain meaning. Any notices required under this Agreement shall be delivered to Blue Banyan Solutions, Inc., DBA as Blu Banyan, located at 1569 Solano Ave., Suite 645, Berkeley, CA 94707, delivery confirmation required.  Any notices to User shall be delivered either electronically via email to User’s account or to the email address listed within User’s account.

37. Amendments

We may amend this Agreement from time to time.  When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email User.  User may refuse to agree to the amendments but User must immediately cease using our Platform.

38. Electronic Communications

The communications between User and Blu Banyan use electronic means, whether User visits the Platform or sends Blu Banyan e-mails, or whether Blu Banyan posts notices on the Platform or communications with User via mobile notifications or e-mail.  For contractual purposes, User (1) consents to receive communications from Blu Banyan in an electronic form; and (2) agrees that all terms, conditions, agreements, notices, disclosures, and other communications that Blu Banyan provides to User electronically satisfies any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect User’s statutory rights.

39. Relationship of Parties

This Agreement shall not be construed to create any association, partnership, joint venture, employee, worker or agency relationship between User and Blu Banyan. The relationship of the parties is as independent contractors. User has no authority (and shall not hold himself or herself out as having authority) to bind Blu Banyan and User shall not make any agreements or representations on Blu Banyan’ behalf without Blu Banyan’ prior written consent.