BLUCHAT SUBSCRIBER AGREEMENT AND TERMS OF USE
Last Modified: January 13, 2022
1. Subscriber’s Acceptance
Welcome to the bluChat Subscriber 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 Subscriber (“Subscriber”), a Subscriber to the Platform. The definition of Subscriber also includes any and all Authorized Users (defined below) of Subscriber. 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, Subscriber agrees to be bound by this Agreement and the Privacy Policy. We may amend this Agreement from time to time and may notify Subscriber when we do so. If Subscriber 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 SUBSCRIBER’S RIGHTS.
2. Platform and Subscriber Accounts
Subscribers or Subscriber’s Authorized Users may be required to register 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. Subscriber is responsible for ensuring that all Authorized Users maintain the confidentiality and security of the Authorized User’s account. Subscriber is solely responsible for all activities of its Authorized Users. Please notify Blu Banyan immediately if any account is compromised.
3. Additional Access
After registering and properly paying for (where required) our Platform, we shall grant Subscriber a limited, non-exclusive, fully revocable, non-transferable, non-sublicensable, and non-assignable right to access to the Platform. Where Subscriber downloads any portions of our Platform, we grant Subscriber 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. Subscriber may use the Platform solely for internal commercial purposes, Subscriber’s access is limited to Subscriber and Subscriber’s Authorized Users, and Subscriber may not transfer or assign Subscriber’s access or license to any third parties. All rights not explicitly granted are reserved for Blu Banyan. Access to the Platform is sold as a subscription and Subscriber does not receive any ownership rights to the Platform. If Subscriber or Subscriber’s Authorized Users breach any of these provisions, Subscriber’s access to use our Platform or Subscriber’s license may be terminated at our discretion. Additionally, we may revoke Subscriber or Subscriber’s Authorized User’s access or license to use our Platform if we believe that Subscriber’s actions may harm us, our business interests, or any third party rights. Failure by us to revoke Subscriber’s access or license does not act as a waiver of Subscriber’s conduct.
4. Platform
The Platform may offer access to tools that assist Subscriber and its Authorized Users with electronic communications. Subscriber 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 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 is considered Subscriber Content (defined below). Subscriber is solely responsible for all such information generated.
5. Authorized Users
Subscriber shall be responsible for and solely liable for any user’s use of the Platform, whether permitted through the NetSuite Software (defined below), accessed through a shareable URL provided by Subscriber to a user, or otherwise (each user that accesses an instance of Subscriber’s Platform shall be referred to as an “Authorized User”), whether such use is permitted or unpermitted. Subscriber shall ensure that each Authorized User abides by all obligations of this Agreement and where applicable shall ensure such Authorized User enters into a bluChat User Agreement with Blu Banyan.
6. Web Based Access
Blu Banyan may enable web based access to the Platform at its discretion. Any web based access to the Platform must be activated by Subscriber as a shareable URL and is the sole responsibility of Subscriber. Subscriber understands that it is solely responsible for monitoring any Authorized User access to the Platform through the shareable URL and any activity that occurs through such shareable URL. Subscriber understands that any person, whether permitted or unpermitted, that has access to the shareable URL may be able to access the Platform and any Subscriber Content contained within the Platform. Any Subscriber Content shared through the shareable URL may be insecure and may be publicly accessible. Subscriber releases Blu Banyan from any liability arising out of its use or any Authorized User’s use of the Platform through the shareable URL.
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 Subscriber. 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 Subscriber. Unless otherwise agreed upon by Blu Banyan any issues with the transmission, processing, or storage of any Subscriber Content by any Third Party Software is solely to be resolved by and between Subscriber and any party owning such Third Party Software.
8. Additional Software Purchase Required
Prior to purchasing a subscription or accessing the Platform, Subscriber shall be required to purchase at Subscriber’s own expense, a license or access to NetSuite software owned and operated by Oracle (collectively “NetSuite Software”), in accordance with Blu Banyan’s instructions. Further, where applicable, Subscriber may be required to provide Blu Banyan access to Subscriber's instance of the NetSuite Software. In order for the Platform to operate properly, Subscriber’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 Subscriber 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 Subscriber and Oracle America, Inc (“Oracle”). Blu Banyan is not a party to any agreements entered into between Subscriber and Oracle. Subscriber agrees to abide by all agreements that Subscriber may have with Oracle when using the Platform and Subscriber agrees that none of Subscriber’s actions while using the Platform shall violate such agreement or cause Blu Banyan to violate any applicable agreements with Oracle.
9. Platform Ownership
Subscriber 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. Subscriber 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. Subscriber 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. Subscriber Responsibilities
Subscriber shall be exclusively responsible for Subscriber's use of the Platform and any of its Authorized User’s use. Where a Subscriber submits any Subscriber Content (defined below), we are not responsible for such Subscriber Content including but not limited to monitoring access permissions or otherwise ensuring the availability of any Subscriber Content. Additionally, Subscriber represents and warrants that: (1) Subscriber shall use the Platform solely for internal business purposes unless expressly permitted otherwise; (2) Subscriber is duly authorized and has the power and authority to enter into this Agreement; (3) any Subscriber Content submitted does not violate the confidentiality rights of a third party; (4) that the Subscriber Content is owned or properly licensed to Subscriber and does not violate any third party agreements; and (5) Subscriber shall use the Platform only for legal and lawful purposes and Subscriber’s use of the Platform including the submission of any Subscriber 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.
11. Information Generated
Subscriber understands and agrees that the Platform is dependent on the information contained in any Subscriber Content submitted by Subscriber and Subscriber is solely responsible for that information. 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 SUBSCRIBER’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 SUBSCRIBER’S USE OF THE SERVICES OR THE PLATFORM.
12. Privacy Policy
We value Subscriber’s privacy and understand Subscriber’s privacy concerns. Our Privacy Policy is incorporated into this Agreement, and it governs Subscriber’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 Subscriber consents to all actions taken by us with respect to Subscriber’s information in compliance with the Privacy Policy.
13. Subscriber Content
A Subscriber or any Authorized 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 “Subscriber Content” throughout this Agreement. Please be aware that we are not required to host, display, migrate, or distribute any Subscriber Content and we may refuse to accept or transmit any Subscriber Content. Subscriber agrees that Subscriber is solely responsible for any Subscriber Content submitted and Subscriber releases us from any liability associated with any Subscriber Content submitted. Any Subscriber 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 Subscriber submits any Subscriber Content to us, Subscriber 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 Subscriber Content for the purposes of providing Subscriber any services associated with the Platform for the duration of this Agreement. Subscriber Content will be shared with third parties that have access to the Platform. Blu Banyan has no liability to the Subscriber for any Subscriber Content including all data, information, copy, images, URL names, and anything else submitted by Subscriber or any third parties using the Platform. Specifically, Blu Banyan shall not be liable for any errors related to any Subscriber Content. We reserve the right to remove, delete, modify, screen, edit, or refuse any Subscriber Content for any reason or no reason, and with or without notice to Subscriber.
14. Subscriber Content Storage
Please be aware that Subscriber Content may be stored and secured by NetSuite Software. Thus, Blu Banyan cannot be responsible for the storage and security of any Subscriber Content. Subscriber releases Blu Banyan from any liability related to the transmission, storage, or security of any Subscriber Content that Subscriber may submit to the Platform.
15. Representations and Warranties
Subscriber agrees that it is solely responsible for any Subscriber Content submitted by Subscriber or any of its Authorized Users. Subscriber represents and warrants the following: (1) the Authorized User transmitting any Subscriber Content has properly licensed such Subscriber Content; (2) the Subscriber Content does not and will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; (3) the Subscriber Content offered does not violate any United States’ state or federal laws or any third party agreements; (4) Subscriber has the unencumbered ownership of all rights or has properly licensed and paid for any rights necessary to the Subscriber Content; (5) Subscriber 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 Subscriber Content submitted is not deemed confidential.
16. Rules for Subscriber Content
Please be aware that all Subscriber 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 Subscriber Content. When submitting any Subscriber Content or allowing any Authorized User’s to submit any Subscriber Content, Subscriber agrees to the following:
- Subscriber agrees that Subscriber Content submitted is truthful, up-to-date, and accurate;
- Subscriber agrees that any Subscriber Content submitted does not contain any confidential information;
- Subscriber agrees that any Subscriber Content submitted shall not depict violence, nudity, sexual material, animal or child abuse, or encourage violence against others;
- Subscriber agrees that any Subscriber 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;
- Subscriber agrees that any Subscriber Content submitted shall not be considered: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
17. Monitoring Subscriber 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 Subscriber 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 Subscriber Content or disable Subscriber or an Authorized User’s access to the Platform at our sole discretion.
18. Use of the Platform
When using our Platform, Subscriber is responsible for Subscriber’s use of the Platform. Subscriber agrees to the following:
- Subscriber may not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Platform;
- Subscriber may not use automated bots or other software to send more messages through our Platform than humanly possible;
- Subscriber 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;
- Subscriber may not access our Platform in an attempt to build a similar or other competitive product;
- Subscriber may not use the Platform in an unlawful manner;
- Subscriber may not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- Subscriber may not violate or infringe other people's intellectual property, privacy, or other contractual rights while using our Platform;
- Subscriber may not interfere with or disrupt the Platform;
- Subscriber agrees not to use the Platform in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing; and
- Subscriber agrees that Subscriber will not hold Blu Banyan responsible for Subscriber’s use of our Platform
19. 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 Subscriber’s access with any Third Party Website. Subscriber agrees to release us from any liability related to Subscriber’s use of any Third Party Website and indemnify us for Subscriber’s use of any Third Party Website. In order to use any Third Party Website Subscriber may be required to agree to the Third Party Website’s terms of use. We are not a party to any contracts that Subscriber enters into with any companies that control any Third Party Website and are not responsible for Third Party Website payment, errors, or service issues.
20. Trials
Blu Banyan may offer the Platform on a trial period basis. Blu Banyan reserves the right to discontinue any trials for users at any time and without liability to us. Where Subscriber has signed up for a trial, Subscriber agrees that at the expiration of Subscriber’s trial, unless Subscriber has formally notified Blu Banyan of cancellation of their trial participation, Subscriber may be automatically subscribed to the Platform and Subscriber’s payment method on file may be charged.
21. 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. Please be aware that some subscriptions may be based on headcount or usage as described at the time of payment. Subscriber may upgrade or downgrade Subscriber’s 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, Subscriber must agree to our third party payment processors’ terms and conditions for processing payments. All prices are listed in United States’ Dollars. All information that Subscriber provides in connection with a payment or transaction must be accurate, complete, and current. Where Subscriber has failed to pay or where payments are overdue, Blu Banyan may suspend or terminate Subscriber’s access to the Platform, without liability to us.
22. Automatic Subscriber Renewals
Where a Subscriber has purchased a subscription, Subscriber’s payment information shall be logged for Subscriber’s convenience. AFTER SUBSCRIBER’S TRIAL (IF ANY), WHERE SUBSCRIBER’S ACCOUNT HAS BEEN SET UP FOR AUTOMATIC BILLING, BLU BANYAN MAY CHARGE SUBSCRIBER AUTOMATICALLY AND ON A RECURRING BASIS, UNLESS SUBSCRIBER NOTIFIES BLU BANYAN THAT SUBSCRIBER WISHES TO CANCEL SUBSCRIBER’S AUTOMATIC PAYMENT. ADDITIONALLY, SUBSCRIBER AUTHORIZES BLU BANYAN TO BILL SUBSCRIBER ON A RECURRING BASIS AND AGREES THAT SUBSCRIBER’S SELECTED SUBSCRIPTION SHALL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS (OF THE SAME LENGTH AS SUBSCRIBER’S INITIAL SUBSCRIPTION (EXCLUDING TRIAL)) UNTIL BLU BANYAN IS NOTIFIED OTHERWISE. SUBSCRIBER AGREES THAT NO ADDITIONAL CONSENT IS REQUIRED BY SUBSCRIBER TO CHARGE SUBSCRIBER’S PREFERRED PAYMENT METHOD AUTOMATICALLY AND ON AN AUTOMATICALLY RENEWABLE BASIS FOR THE SUBSCRIPTION. IF SUBSCRIBER WOULD LIKE TO CANCEL, SUBSCRIBER MAY CANCEL BY NOTIFYING BLU BANYAN AT BLUCHAT@BLUBANYAN.COM OR BY ACCESSING SUBSCRIBER’S SUBSCRIPTION INFORMATION IN SUBSCRIBER’S ACCOUNT AND CANCELING SUBSCRIBER’S AUTOMATIC SUBSCRIPTION.
23. Refunds for Subscription
Please be aware that no refunds will be permitted after the start of Subscriber’s paid subscription. Where a trial period has been offered to Subscriber, Subscriber may cancel Subscriber’s trial at any time during that period without payment. If Subscriber has any questions regarding the subscription or our policies, please contact us at bluchat@blubanyan.com.
24. Taxes
Where Blu Banyan does not charge Subscriber taxes for any subscriptions, Subscriber agrees to pay any and all applicable taxes.
25. Pricing and Price Increases
The pricing for all paid subscriptions is listed on the Blu Banyan Platform or within Subscriber’s 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 Subscriber and Subscriber shall have the chance to accept or reject any price increase. Where Subscriber has rejected a price increase this Agreement may be terminated immediately at our discretion. Subscriber agrees that Blu Banyan has no obligation to offer any services for the price originally offered to Subscriber at sign up.
26. 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 Subscriber or Subscriber’s Authorized Users 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; (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 Subscriber has questions about a Hold we may have placed on Subscriber’s account, or needs 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.
27. Termination of Subscriber’s Subscription
Subscriber may terminate Subscriber’s subscription at any time via Subscriber’s Blu Banyan account dashboard or by contacting us at bluchat@blubanyan.com. Please be aware that upon termination of Subscriber’s account, access to all or portions of our Platform may become immediately disabled and any Subscriber Content stored may not be retained and may be deleted. We shall have no liability to Subscriber in regards to any retention of any Subscriber Content. We may terminate Subscriber’s subscription or terminate this Agreement, immediately, if we determine that: (1) Subscriber has violated any applicable laws while using our Platform; (2) if Subscriber has violated any portion of this Agreement or any of our Platform policies; or (3) if we believe that any of Subscriber’s current or future actions may legally harm Blu Banyan, our business interests or a third party, at our discretion.
28. Platform Security
While Blu Banyan employs electronic safeguards, please be aware that Blu Banyan can make no guarantees regarding any Platform security. Subscriber agrees to exercise caution and common sense when using the Platform. Please be aware that some or all portions of the Platform (including any Subscriber Content) may be accessible by third parties due to Subscriber’s settings, any shareable URLs, or any third party integrations, Subscriber is solely responsible for any access by such third parties, whether such access is permitted or un-permitted.
29. Platform Availability
Although we try to provide continuous availability to Subscriber, 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. Subscriber agrees and acknowledges 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 Subscriber’s access at any time. We cannot guarantee that anything found on our Platform will work to the functionality desired by Subscriber or give Subscriber any desired results.
30. Support
Where a Subscriber requires support for the Platform, please contact us at bluchat@blubanyan.com.
31. 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 Subscriber 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 Subscriber.
32. Idea Submission
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 Subscriber submitted to Blu Banyan. Where Subscriber submits any Submission, whether solicited or unsolicited, Subscriber agrees that: (1) Subscriber’s Submissions and their contents will automatically become the property of Blu Banyan, without any compensation to Subscriber; (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.
33. 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 SUBSCRIBER 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 SUBSCRIBER’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 SUBSCRIBER’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 SUBSCRIBER’S USE OF OR RELIANCE ON SUCH THIRD PARTY WEBSITE.
34. Limitation of Liability
IN NO EVENT SHALL BLU BANYAN, OUR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO SUBSCRIBER 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 SUBSCRIBER. SUBSCRIBER 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 SUBSCRIBER AGREES THAT OUR TOTAL LIABILITY TO SUBSCRIBER SHALL NOT EXCEED THE AMOUNTS SUBSCRIBER HAS PAID IN THE PAST SIX (6) MONTHS TO USE OUR PLATFORM OR ONE THOUSAND USD, WHICHEVER IS LESSER.
35. Indemnity
Subscriber 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: Subscriber’s use of or access to the Blu Banyan Platform; an Authorized User’s use of or access to the Blu Banyan Platform including but not limited to the transmission of any Subscriber Content; Subscriber’s violation or an Authorized User’s violation of any term of this Agreement; or Subscriber’s violation or an Authorized 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 Subscriber’s use of the Blu Banyan Platform. Subscriber also agrees that Subscriber has a duty to defend us against such claims and we may require Subscriber to pay for an attorney(s) of our choice in such cases. Subscriber agrees that this indemnity extends to requiring Subscriber 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 Subscriber shall be liable for the damages as though we had proceeded with a trial.
36. Copyrights
Takedown Notice We take copyright infringement very seriously. If Subscriber believes that any copyrighted material owned by Subscriber has been infringed upon by someone using our Platform, please send us a message which contains: Subscriber’s name. The name of the party whose copyright has been infringed, if different from Subscriber’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 Subscriber 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 Subscriber swears, under penalty of perjury, that the information contained in this notification is accurate and that Subscriber is the copyright owner or has an exclusive right in law to bring infringement proceedings with respect to its use. Subscriber 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 Subscriber receives a notification from Blu Banyan stating content posted by Subscriber has been subject to a DMCA takedown, Subscriber may respond by filing a counter-notice pursuant to the DMCA. Subscriber’s counter-notice must contain the following: Subscriber’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. Subscriber’s consent to the jurisdiction of a federal court in the district where Subscriber lives (if Subscriber is in the U.S.), or Subscriber’s consent to the jurisdiction of a federal court in the district where Subscriber’s service provider is located (if Subscriber is not in the US). Subscriber’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 Subscriber’s counter-notice unless Subscriber’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.
37. 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. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded.
38. Disputes
Any dispute relating in any way to Subscriber’s use of the Platform (including any Authorized User’s use) 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 Subscriber may opt-out of this dispute resolution provision by notifying Blu Banyan within 30 days of the date on which Subscriber entered into this Agreement or purchased a subscription, whichever is earlier. Subscriber 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 Subscriber must include Subscriber’s name, address, account information, and a clear statement that Subscriber does not wish to resolve disputes with Blu Banyan through arbitration. Where Subscriber opts out of arbitration, all disputes shall be heard in a court of competent jurisdiction located within Alameda County, CA.
39. Class Action Waiver
Subscriber 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. Subscriber agrees that Subscriber will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action.
40. 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 Subscriber 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.
41. 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.
42. Assignment and Survival
Subscriber may not assign Subscriber’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, Subscriber Content licenses, Representation and Warranties, Access, Payment, Indemnification, and Arbitration sections.
43. 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 Subscriber 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 Subscriber shall be delivered either electronically via email to Subscriber’s account or to the email address listed within Subscriber’s account.
44. 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 Subscriber. Subscriber may refuse to agree to the amendments but Subscriber must immediately cease using our Platform.
45. Electronic Communications
The communications between Subscriber and Blu Banyan use electronic means, whether Subscriber visits the Platform or sends Blu Banyan e-mails, or whether Blu Banyan posts notices on the Platform or communications with Subscriber via mobile notifications or e-mail. For contractual purposes, Subscriber (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 Subscriber electronically satisfies any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Subscriber’s statutory rights.
46. 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. Blu Banyan is not a party to any agreements between Subscriber and any of its Authorized Users. No agreements between Subscriber and any of its Authorized Users may abridge any rights of Blu Banyan as set forth in this Agreement.