Last Modified: June 11, 2021
1. Your Acceptance
2. Platform and Subscriber Accounts
3. Additional Access
After registering and properly paying for our Platform, where required, we shall grant you access to the Platform as permitted by us. Where you download any portions of our Platform we grant you 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. You may use Platform solely for internal commercial purposes and your access is limited to you and your authorized users, you may not transfer or assign your access to any third parties. All rights not explicitly granted are reserved for Blu Banyan. If you breach any of these access provisions, your access to use our Platform or your license may be terminated at our discretion. Additionally, we may revoke your access to our Platform if we believe that your actions may harm us, our business interests, or any third party rights. Failure by us to revoke your access does not act as a waiver of your conduct. Any rights not explicitly granted are solely reserved for us.
The Platform may offer access to tools that assist Subscriber with electronic communications. You 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, are 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 to any subscription levels at our sole discretion. Please be aware that any information generated during the use of the Platform is for general informational purposes and are considered User Content (defined below). Subscriber is solely responsible for all such information generated.
5. 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 or accessed by you. 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 you. 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 you and any party owning such Third Party Software.
6. Additional Software Purchase Required
Prior to purchasing a subscription or accessing the Platform, you shall be required to purchase at your own expense, a license or access to software owned and operated by NetSuite (collectively “NetSuite Software”), in accordance with Blu Banyan’s instructions. Further, where applicable you may be required to provide Blu Banyan access to your instance of the NetSuite Software. In order for the Platform to operate properly your 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 you have 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 you and Oracle America, Inc (“Oracle”). Blu Banyan is not a party to any agreements entered into between you and Oracle. You agree to abide by all agreements that you may have with Oracle when using the Platform and you agree that none of your actions while using the Platform shall violate such agreement or cause Blu Banyan to violate any applicable agreements with Oracle.
7. Platform Ownership
You acknowledge 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. You 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. You 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.
8. Subscriber Responsibilities
Subscriber shall be exclusively responsible for your use or any of your authorized user’s use. Where a Subscriber submits any User Content (defined below), 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, you represent and warrant that: (1) you shall use the Platform solely for internal business purposes unless expressly permitted otherwise; (2) you are 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 Subscriber and does not violate any third party agreements; and (5) you shall use the Platform only for legal and lawful purposes and your use of the Platform including the submission of any User Content shall comply with all relevant laws in any jurisdiction. Subscriber shall indemnify and hold Blu Banyan harmless for a breach of any provisions of this section.
9. Information Generated
Subscriber understands and agrees that the Platform is dependent on the information contained in any User Content submitted by Subscriber and Subscriber is solely responsible for that information. Please do not take any actions or refrain from taking actions solely on the basis of information provided. Subscriber is solely responsible for evaluating and independently verifying all information provided. THE SUBSCRIBER AGREES TO HOLD BLU BANYAN FREE FROM RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF YOUR USE OF THE PLATFORM AND ANY INFORMATION GENERATED. BLU BANYAN WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES OR THE PLATFORM.
11. User Content
A Subscriber’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 of your User Content and we may refuse to accept or transmit any User Content. You agree that you are solely responsible for any User Content submitted and you release 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 you submit any User Content to us, you grant Blu Banyan, its partners, affiliates, Users, 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 your User Content for the purposes of providing you 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 Users for any User Content including all data, information, copy, images, URL names, and anything else submitted by you 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 you.
12. Monitoring User Content
Although the instance of the Platform shall be located within any NetSuite Software, Blu anyan 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 or disable your access to the Platform at our sole discretion.
13. Use of the Platform
When using our Platform, you are responsible for your use of the Platform. You agree to the following:
- You may not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Platform;
- You may not use automated bots or other software to send more messages through our Platform than humanly possible;
- You may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements o the Platform or any portion of it;
- You may not access our Platform in an attempt to build a similar or other competitive product;
- You may not use the Platform in an unlawful manner;
- You may not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- You may not violate or infringe other people's intellectual property, privacy, or other contractual rights while using our Platform;
- You may not interfere with or disrupt the Platform;
- You agree not to use the Platform in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing; and
- You agree that you will not hold Blu Banyan responsible for your use of our Platform
If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Platform may at our discretion be terminated or suspended. Additionally, if we believe that your actions may harm us or a third party we may suspend or terminate your 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 your use of any of our Platform, but Blu Banyan reserves the right to suspend or terminate any account at any time
14. Third Party Integrations
Blu Banyan may offer the Platform on a trial period basis, Blu Banyan reserves the right to discontinue any trails for users at any time and without liability to us. Where you have signed up for a trial, you agree at the expiration of your trial you may be automatically subscribed to the Platform and your payment method on file may be charged.
16. Subscriber Payments
Subscriber agrees to pay for all costs, fees, and taxes listed when purchasing access to the Platform including any recurring subscriptions in a timely manner. Subscriber may upgrade or downgrade your subscription at any time. However, where any downgrade occurs during a subscription period, Subscriber shall be charged for the maximum quantified usage for such subscription period and any downgrade shall not reduce charges until the following subscription period. Subscriber authorizes Blu Banyan or its third party payment processors to charge their method of payment on file at the time of purchase. Where applicable, you must agree to our third party payment processors’ terms and conditions for processing payments. All prices are listed in US Dollars. All information that you provide in connection with a payment or transaction must be accurate, complete, and current. Where you have failed to pay or where payments are overdue, Blu Banyan may suspend or terminate your access to the paid portions of the Platform, without liability to us.
17. Automatic Subscriber Renewals
Where a Subscriber has purchased a subscription, your payment information shall be logged for your convenience. AFTER YOUR TRIAL (IF ANY), IF YOUR ACCOUNT HAS BEEN SET UP FOR AUTOMATIC BILLING, BLU BANYAN MAY CHARGE YOU AUTOMATICALLY AND ON A RECURRING BASIS, UNLESS YOU NOTIFY US THAT YOU WANT TO CANCEL YOUR AUTOMATIC PAYMENT VIA YOUR ACCOUNT DASHBOARD. ADDITIONALLY, YOU AUTHORIZE US TO BILL YOU ON A RECURRING BASIS AND AGREE THAT YOUR SELECTED SUBSCRIPTION SHALL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS (OF THE SAME LENGTH AS YOUR INITIAL SUBSCRIPTION (EXCLUDING TRIAL)) UNTIL WE ARE NOTIFIED OTHERWISE. YOU AGREE THAT NO ADDITIONAL CONSENT IS REQUIRED BY YOU TO CHARGE YOUR PREFERRED PAYMENT METHOD AUTOMATICALLY AND ON AN AUTOMATICALLY RENEWABLE BASIS FOR THE SUBSCRIPTION. IF YOU WOULD LIKE TO CANCEL YOU MAY CANCEL YOUR AUTOMATIC SUBSCRIPTION BY NOTIFYING US AT BLUCHAT@BLUBANYAN.COM OR BY ACCESSING YOUR SUBSCRIPTION INFORMATION IN YOUR ACCOUNT AND CANCELLING YOUR SUBSCRIPTION.
18. Refunds for Subscription
We want you to be satisfied with the Platform; however, no refunds will be permitted after the start of your paid subscription. Where a trial period has been offered to you, you may cancel your trail at any time during that period without payment. If you have any questions regarding the subscription or our policies, please contact us at email@example.com.
Where Blu Banyan does not charge you taxes for any subscriptions, you agree to pay any and all applicable taxes.
20. Pricing and Price Increases
The pricing for all paid subscriptions is listed on the Blu Banyan Platform or within your account. Additionally, Blu Banyan may increase the price of any paid subscriptions or any associated fees, at our discretion and we reserve the right to do so at any time. In the event of a price increase, Blu Banyan shall notify you and you will have the chance to accept or reject any price increase. Please notify us if you intend to reject a price increase. Where you have rejected a price increase this Agreement may be terminated immediately at our discretion. You agree that Blu Banyan has no obligation to offer any services for the price originally offered to you at sign up.
21. Subscriber Account Holds
From time to time, Blu Banyan may place a hold (“Hold”) on a Subscriber’s account. Some of the reasons that we may place a Hold on Subscriber’s account include but are not limited to the following: (1) if we have reason that your services offered or your actions have violated this Agreement, may harm our business, are deceptive, misleading, unlawful, or have harmed a third party or interfere with a third partycontractual right; (2) at the request of our payment processors or due to delayed payment; or (3) if required in order to comply with a court order, subpoena, writ, injunction, or as otherwise required under applicable laws and regulations. If you have questions about a Hold we may have placed on your account, or need information about how to resolve the Hold, please contact us. Additionally, we may suspend Subscriber’s access to the Platform while such Hold is in place.
22. Termination of Your Subscription
You may cancel your subscription at any time via your Blu Banyan account dashboard or by contacting us at firstname.lastname@example.org. Please be aware that upon termination of your account, access to all or portions of our Platform may be become immediately disabled and any User Content stored may not be retained and may be deleted. We shall have no liability to you in regards to any retention of your User Content. We may terminate this Agreement with you if we determine that: (1) you have violated any applicable laws while using our Platform; (2) if you have violated any portion of this Agreement or any of our Platform policies; or (3) if we believe that any of your current or future actions may legally harm Blu Banyan, our business interests or a third party, at our discretion. In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so.
23. Platform Security
While Blu Banyan employs electronic safeguards, please be aware that Blu Banyan can make no guarantees regarding any Platform security. You agree to exercise caution and common sense when using the Platform and please be aware that some or all portions of the Platform may be accessible by third parties based on Subscriber’s settings or any third party integrations, Subscriber is solely responsible for any access by such third parties, whether such access is permitted or un-permitted.
24. Platform Availability
Although we try to provide continuous availability to you, 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. You agree and acknowledge that the Platform may not always be either 100% reliable or available. Only Subscribers who are eligible to use our Platform may do so and we may refuse service or terminate your access at any time. We cannot guarantee that anything found on our Platform will work to the functionality desired by you or give you any desired results.
Where a Subscriber requires support for the Platform, please contact us at email@example.com.
26. 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 you 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 you.
27. 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 you submitted to Blu Banyan. Where you submit any Submission, whether solicited or unsolicited, you agree that: (1) your Submissions and their contents will automatically become the property of Blu Banyan, without any compensation to you; (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.
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 OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED 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 IS ACCURATE, COMPLETE, OR USEFUL. BLU BANYAN DOES NOT WARRANT THAT YOUR 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 YOUR 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 YOUR USE OF OR RELIANCE ON SUCH THIRD PARTY WEBSITE.
29. Limitation of Liability
IN NO EVENT SHALL BLU BANYAN, OUR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO YOU 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 THE 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 OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. YOU 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 YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNTS YOU HAVE PAID IN THE PAST SIX (6) MONTHS TO USE OUR LATFORM OR ONE HUNDRED USD, WHICHEVER IS GREATER.
You agree 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:
- your or your authorized user’s use of and access to the Blu Banyan Platform;
- your violation of any term of this Agreement;
- your 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 your use of the Blu Banyan Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you 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 you shall be liable for the damages as though we had proceeded with a trial.
We take copyright infringement very seriously. If you believe that any copyrighted material owned by you has been infringed upon by someone using our Platform, please end us a message which contains:
- Your name.
- The name of the party whose copyright has been infringed, if different from your name.
- The name and description of the work that is being infringed
- The location on our Platform of the infringing copy.
- A statement that you have 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 you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You 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.
In the event that you receive a notification from Blu Banyan stating content posted by you has been subject to a DMCA takedown, you may respond by filing a counter-notice pursuant to the DMCA. Your counter-notice must contain the following:
- Your 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.
- Your consent to the jurisdiction of a federal court in the district where you live (if You are in the U.S.), or Your consent to the jurisdiction of a federal court in the district where Your service provider is located (if you are not in the US).
- Your 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 your counter-notice unless Your 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.
32. 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.
Any dispute relating in any way to your visit to 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 before one arbitrator 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/. Any arbitration shall take place in Berkley, California. 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.
You may opt-out of this dispute resolution provision by notifying Blu Banyan within 30 days of the date on which you entered into this Agreement or purchased a subscription, whichever is earlier. You 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 you must include your name, address, account information, and a clear statement that you do not wish to resolve disputes with Blu Banyan through arbitration. Where you opt out of arbitration, all disputes shall be heard in a court of competent jurisdiction located within Alameda County, CA.
34. Class Action Waiver
You 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. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action.
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 you 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.
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 the 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.
37. Assignment and Survival
You may not assign your 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, Representation and Warranties, Access, Payment, Indemnification, and Arbitration sections.
38. Entire Agreement and Notices
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 you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Platform.
40. Electronic Communications
The communications between you and Blu Banyan use electronic means, whether you visit the Platform or send Blu Banyan e-mails, or whether Blu Banyan posts notices on the Platform or communications with you via mobile notifications or e-mail. For contractual purposes, you (1) consent to receive communications from Blu Banyan in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Blu Banyan provides to you electronically
satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
41. Relationship of Parties
This Agreement shall not be construed to create any association, partnership, joint venture, employee, worker or agency relationship between Subscriber and Blu Banyan. The relationship of the parties is as independent contractors. Subscriber has no authority (and shall not hold himself or herself out as having authority) to bind Blu Banyan and Subscriber shall not make any agreements or representations on Blu Banyan’ behalf without Blu Banyan’ prior written consent.
42. California Users
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Blu Banyan must be sent to our agent for notice to: Blue Banyan Solutions, Inc., DBA as Blu Banyan, located at 1569 Solano Ave., Suite 645, Berkeley, CA 94707. California Users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.